The Construction (Design and Management) Regulations 2015: Time to sit up and know your risk
Very recently, a company became the first (or one of the very first) to be prosecuted under the Construction (Design and Management) Regulations 2015.
This case is of upmost importance to local authorities, developers, public and statutory bodies, and the financial sector in general because for the first time the client is primarily legally responsible to ensure that health and safety responsibilities in construction are adequately managed.
These Regulations should be considered before even the drawing board stage and, more importantly, appropriate legal advice should be taken as they are incredibly complicated, novel, and untested by the Courts.
These regulations represent a serious risk for all commercial projects and there will be increasing numbers of prosecutions against clients.
Under the Regulations a commercial client is defined as “organisations or individuals for whom a construction project is carried out that is done as part of a business”. Part 2 of the Regulations sets out the various duties including:
•Making sufficient arrangements for managing a project including the allocation of sufficient time and other resources.
•Making sure that the construction work can be carried out, so far as is reasonably practicable, without risks to the health and safety of any person affected by the project
•Ensuring that these arrangements are maintained and reviewed throughout the project
•Providing pre-construction information as soon as is practicable to every designer and contractor appointed, or being considered for appointment to then project.
In essence, the Regulations make the commercial client responsible for the entire safety of the project.
The client must be certain that everyone involved in the project (architects, contractors, surveyors etc.) have the necessary skills, knowledge and organisational capacity to fulfil their various roles, and to make sure that there is sufficient funding and time to conduct the project safely.
If found guilty (or pleading guilty) under the appropriate Sentencing Guidelines that trigger, on mere risk and not requiring injury or death, fines in excess of £10 million for large companies and imprisonment of individuals are on the horizon.
In the present case, the property development and renting company commenced the project just before the new regulations came into effect and the prosecution was forced to withdraw the charges, substituting them with the 2007 Regulations, which placed much less onus on the client.
The prosecution had originally submitted that the appropriate fine under the Sentencing Guidelines should be £1.3 million, based on the company’s turnover. After a series of hearings and lengthy written and oral submissions the Court imposed a fine of £18,000.
This approach will increasingly become more difficult as most projects would have commenced after April 2015, and there are other cases currently under investigation.
Gerard Forlin QC acted for the defendant company.