Sitting on a panel with an HSE inspector at a CDM conference in 1995, I overheard him whisper to one of the other panel members: "What is practical completion?" The HSE has become a lot more sophisticated about construction since then.
It has set down its latest ideas in a new code of practice that supports and explains the CDM regulations. You really do need to buy it: first, because the new ACOP is completely different from the old. And second, if you are prosecuted and you did not follow it, you will have to prove that you have complied with the law in some other way. This is likely to be tricky, so it is best to read and understand the ACOP and apply the measures in it.
The ACOP will now tell you what you do not have to do as well as what you do. It comes into force on the first day of next month – next Friday – so you need to look at it very soon.
There have been complaints that the CDM regulations do not allow for all the complexities of a construction site, and this is now recognised. For instance, paragraph 146 of the ACOP acknowledges that design does not end when work starts on site. All the designers have a continuing obligation to design for safety and the planning supervisor has a continuing duty to see that there is co-operation between the designers for that purpose. This applies to subcontract designers as well as to the employer's designers.
The HSE has accepted that planning supervisors and contractors are not philosophers. They do not sit down and ponder deeply what the health and safety plan should contain. If you are still struggling to apply CDM in the most cost-effective way, you will find a lot more help on what should go in the health and safety plan in the new ACOP.
The original ACOP covered only the pre-tender plan. Now appendix 3 has a detailed description of the contents of both that and the construction phase plan. The same treatment, though in less detail, is given to the contents of the health and safety file. There is more information than the previous version, including examples of residual hazards that should be covered in the file.
The ACOP is completely restructured. It groups the text according to the duty holders and the documents to be produced. For example, pages 22-31 are essential reading for designers. They state what many have been saying for years: "Designers must not produce designs that cannot be constructed safely."
Designers can no longer avoid buildability issues, and should demand comprehensive continuing professional development sessions that cover this.
The code of practice does not, however, grapple with all issues. For instance, there is a short section on PFI and similar projects. The government is committed to being a best practice client, but most project originators that act as a PFI client have steadfastly refused to appoint a planning supervisor, even though they are carrying out substantial design before financial close, whether in-house or through external consultant. The ACOP skirts around this issue, advising that the project originators can be designers for a PFI project, but it falls short of reminding them that the regulations require that they appoint a planning supervisor for those early stages of design.
Copies of the ACOP can be obtained from: HSE Books, PO Box 1999 Sudbury, Suffolk CO10 2WA. Tel: 01787-881165.
Gillian Birkby is a partner in the construction and engineering department of Rowe & Maw and chair of the CIC Health and Safety Panel.