It’s down to the developer

In my last piece, I examined whether the proposed changes to the Construction (Design and Management) regulations in the consultation document go far enough in addressing the shortcomings of those regulations. If you are asking what shortcomings, the recommendations contain plenty of clues. They aim to:

• Simplify and clarify the regulations
• Make them more flexible and compatible with modern procurement requirements
• Place the emphasis on the management of health and safety risk rather than creating a bureaucratic paper trail
• Strengthen co-ordination and co-operation between designers and contractors.

I believe all those objectives are necessary if CDM is to work more effectively. My concern is that they do not go nearly far enough in addressing the underlying causes of the industry’s unacceptable health and safety record.

In particular I am sceptical whether simply replacing a paper trail system with one that concentrates on co-operation and management is going to change much. Obviously, there is a need for co-operation and co-ordination. How often one hears designers complaining that contractors do not begin to understand their design solutions. Similarly, contractors complain that designers live in another world and have no idea how things are built. One might hope the planning supervisor would bridge the cultural divide but too often their hands are tied by inadequate fees, a lack of authority and even, in some cases, a lack of relevant skill.

Isn’t this all the inevitable result of pressing a complex web of interlocking, and often overlapping, duties upon most of the participants in the construction process? In my experience, the more duties one seeks to impose, the more one tends to cloud, and ultimately dilute, individual responsibility.

Surely, the solution lies in getting back to basics. The reality is that, like all desired objectives in the construction process – such as quality and timely completion – health and safety ultimately affects the bottom line. I have heard designers commenting that they are rarely thanked for adopting safer but more expensive design solutions. Similarly, I have heard contractors say that if they build into their tenders a realistic contingency for meeting health and safety risks they would get thrown out with the rubbish.

Even more worryingly, I have seen situations where commercial pressure placed upon a contractor through its cash flow has resulted in unacceptable shortcuts being taken in health and safety.

No doubt, CDM does improve things to some degree. The most valuable recommendation in the consultation document is for there to be much more training and debate with the aim of increasing health and safety awareness in the labour force.

If developers have to sit through more lectures on health and safety, then, as the French say, tant pis

But the real solution lies in making the clients that procure the projects ultimately responsible for their health and safety. After all, it is the client that is in a position to enforce health and safety as a high priority. Similarly, it is the client that can avoid creating a financial climate on the project in which unacceptable shortcuts are likely to be taken.

Simply giving the client a handful of rather vague and anodyne duties concerning the provision of information and the like will not make much of a difference. Significant change is unlikely until clients – at least those in the public and commercial sectors – are given more direct responsibility for ensuring projects are carried out as safely as possible.

Inevitably, responsibility of that sort means real sanctions – civil and criminal. If this means developers having to sit through more lectures on health and safety and fewer on mezzanine finance, then, as the French say, tant pis.

I cannot imminently see any radical move in this direction, but I do believe the adoption of such an approach is an inevitability if, as a society, we really want to grasp the nettle. For the moment, we should view the recommendations as a necessary, if rather modest, step in the right direction.

Dominic Helps is a partner in Shadbolt & Co, dominic_helps@shadboltlaw.com