Construction plight

Real estate lawyers need to familiarise themselves with updated construction regulations in order to best serve their clients, says Gillian Birkby

Whether you act for a landlord or a tenant, all real estate lawyers need to understand the changes to the Construction (Design and Management) (CDM) Regulations 2007 and the impact they will have on clients’ duties. This is because a client cannot delegate their liabilities for their performance as a client under the CDM Regulations or their liabilities for the health and safety of those working on a construction site or affected by it.

Liabilities of all clients
Lawyers should also understand how the provisions in an agreement for lease can be worded to assist clients in carrying out their duties. It is no longer sufficient for the landlord to require the tenant, for instance, to warrant that they will comply with all the obligations of the client under the CDM Regulations. Even if the tenant takes on the role of the client under the CDM Regulations, the landlord will still have some residual duties to provide any relevant information that is in their possession, such as a health and safety file, and to cooperate with everyone on the same, or adjoining, construction site. This duty to cooperate can assist both landlord and tenant when construction works are undertaken, not just health and safety, but in all areas.

Projects large and small
Property lawyers should be aware that the CDM Regulations now apply to all construction projects, except where the client is a domestic one. If your client has a facilities manager or estate manager they should be looking at their appointments to check that if they are carrying out the client function for construction work, their appointment requires them to comply with the client’s CDM duties.

A project likely to last less than 30 days and that is not likely to involve more than 500 people days of work is non-notifiable. It will not then be necessary to appoint a CDM coordinator (the successor to the planning supervisor) or a principal contractor. There will also be no need for a construction phase plan or a health and safety file.

However, the clients’ duties to ensure that there are management arrangements in place so that health and safety is addressed will still apply. In addition, the client, designers and contractors must cooperate with anyone on the same or an adjoining site. They will also have a duty to coordinate their work with each other and to appoint only those who are competent to carry out the designer and contractor obligations under the CDM Regulations.

This is an area where the real estate lawyer can assist the client by advising them on the legal requirement to appoint competent dutyholders. The lawyer can direct the client to various sources of information about a client’s duties (www.constructingexcellence.org.uk) and the regulations and accompanying approved code of practice can be found in Managing Health and Safety in Construction (www.hsebooks.com).

Necessary advice
So, what do real estate lawyers need to advise clients to do about the CDM Regulations?

•Obtain either a copy of the regulations and approved code of practice, or a short guide on what is required of clients and other dutyholders (a brief leaflet entitled ‘CDM 2007 What Clients Need to Do’ is produced by the Association for Project Safety).

•Where there is more than one client for a construction project one of them can be appointed as ‘the client’ and the other clients will then have reduced duties.

•Make sure there are management arrangements to deal with health and safety issues.

•Provide reasonably obtainable information relevant to the site or construction work. For example, lawyers need to advise their clients that information about asbestos or ground conditions must be provided to contractors rather than letting them discover these hazards for themselves.

•Work should not be allowed to start on site until the construction phase plan is in place and the client is satisfied that there will be welfare facilities (such as washing facilities) in place from the beginning of construction work.

•Keep the health and safety file updated to include any relevant health and safety information about construction work carried out and details of the asbestos management plan. The lawyer should make sure the client understands that, from now on, health and safety files must be updated rather than a new one created each time construction work is carried out. It is good practice to update the file even when non-notifiable work is carried out; this will assist those who need to consult the file. As a property lawyer, you can also expect to be asked whether the health and safety file has been updated whenever a property is being sold.

•The lawyer must also check the client has included in the tender documents (or their equivalent) information about what the minimum mobilisation period will be – the period between the date on which the contractor is notified that he has been awarded the contract and the date on which he is expected to start work on the site.

•If a project is notifiable the lawyer should advise the client to appoint a CDM coordinator as soon as possible. This will enable the client to manage the risk of non-compliance with the CDM Regulations, as it is the CDM coordinator’s primary function to assist the client in carrying out their own duties. The client must, of course, appoint a competent CDM coordinator. Inserting a clause into the CDM coordinator’s appointment, warranting that they are competent, will not be sufficient compliance with the client’s duties.

•Appoint competent designers and a competent principal contractor. Designers are now obliged to design for safety in use so clients should expect that, on completion, the structure meets the requirements of workplace regulations.

Gillian Birkby is head of construction at Fladgate Fielder