Despite the fact that the Construction (Design and Management) Regulations 2015 (commonly known as CDM Regulations 2015) have been well documented over the six years since their introduction, and are familiar to those working in the construction industry, there is still significant confusion about some issues.
In particular, there is often confusion as to who should fulfil the role of the Principal Designer on design and build projects and when they should be appointed.
With that in mind, let’s get back to basics and work through the answer.
It makes sense to start with the most essential point – what is the legal obligation as set out by the CDM Regulations 2015?
Regulation 5 requires the Client to appoint, in writing, “a designer with control over the pre-construction phase as Principal Designer”.
The appointment must be made as soon as practicable, usually around RIBA Stage 2.
If the Client does not appoint a Principal Designer, then they must fulfil the Principal Designer duties set out in Regulations 11 and 12.
Again, let’s look at the regulations definition:
The CDM Regulations 2015 define a ‘designer’ as “as an organisation or individual who:
However, the regulations are sufficiently broad, and a designer can include a quantity surveyor who prepares bills of quantities.
In order to fulfil the role, the Principal Designer must have the “skills, knowledge and experience, and, if they are an organisation, the organisational capability, necessary to fulfil the role that they are appointed to undertake, in a manner that secures the health and safety of any person affected by the project”.
When selecting the Principal Designer for a project, there are obligations to be met by both the Principal Designer and the Client. These are:
The duties of the Principal Designer are set out in Regulation 11 (pre-construction phase) and Regulation 12 (construction phase plan and health & safety file).
When it comes to the question of who can act as Principal Designer, there is a wealth of articles available discussing the subject. Many commentators suggest the role is best suited to the architect or other lead designer.
However, if the Principal Designer:
they can fulfil the role of Principal Designer even if they are not a member of the project design team, although this might not work particularly well with a different consultant undertaking the lead designer role.
When a project follows Design & Build procurement, the Client typically appoints a Principal Designer (usually an architect or specialist consultant) during the early pre-contract design stages. The Principal Designer controls the project through the pre-construction phase until the appointment of the D&B Contractor. The D&B Contractor is almost always the Principal Contractor.
Because the D&B Contractor will need to prepare and modify designs throughout the appointment of design consultants and subcontractors, the Client would typically appoint the contractor to carry out the Principal Designer role.
However, it is common for either an architect or specialist consultant to be appointed by the Principal Contractor to fulfil their legal obligations under the CDM Regulations. This often leads to said architect or specialist contractor being referred to the Principal Designer.
Whilst there is nothing to prevent the Principal Contractor fulfilling their obligations by using an architect or specialist contractor, they cannot delegate their legal duties and remain responsible for the performance of the Principal Designer role.
This means, in this situation, that the architect or specialist contractor performing the role should more accurately be referred to as “Advisor to the Principal Designer”, and not Principal Designer. The title “Advisor to the Principal Designer” is not recognised within the Regulations.
In order to offer continuity, there is a strong argument for the initial Principal Designer who controlled the early, pre-construction phase of the project, to continue to fulfil this role after the appointment of the D&B Contractor.
However, after the appointment of the D&B Contractor, the original Principal Designer will no longer have control of the pre-construction stage and therefore cannot fulfil the requirements of the Regulations as cited above.
This is why, in most circumstances, the D&B Contractor is also appointed as the Principal Designer. As previously stated, there is nothing to stop the D&B Contractor from appointing the original Principal Designer as an advising consultant, but the legal duties cannot be delegated.
Under the Regulations, the Principal Designer must be appointed by the Client.
This means that, if an architect’s appointment covers its roles both as architect and as PD, and that appointment is novated to the contractor, the Principal Designer is no longer appointed by the Client.
In order to be compliant with the Regulations either; a standalone appointment of the architect as Principal Designer is required; or the client should consider appointing the D&B Contractor as Principal Designer for the construction phase providing the Client is satisfied the D&B Contractor meets the legal requirements.
Evolution5 provides Clients, D&B Contractors, and Architects with Principal Designer, Advisor to the Principal Designer and CDM Consultancy services.
If you would like to discuss the most appropriate way to satisfy your legal obligations under the Construction (Design and Management) Regulations 2015, please get in touch via the contact button below or by calling 023 8040 5073 to speak to a member of the team.
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