When the CDM Regulations 2007 were first laid before Parliament in early 2007 they were accompanied by an Explanatory Memorandum produced by the HSE which stated that although the UK has been able to satisfy the EC, when it questioned Member States on the implementation of the Council Directive /92/57/EEC (the implementation of minimum safety and health requirements at temporary or mobile construction sites), on most of its questions two points remained where the EC doubts the adequacy of the UK implementation.

These are:

• the exemption of domestic clients from all duties under the Regulations;
• the use of notifiability of a project, rather than the simultaneous presence of two or more contractors on site, as the trigger for appointment of the CDM Co-ordinator and Principal Contractor and the drawing up of certain formal plans.

The HSE made it clear in the Explanatory Memorandum the reasons for their approach on these two issues was as follows:

• in the case of domestic clients, we do not believe that it is practical or proportionate to place duties in respect of occupational health, safety and welfare on these persons, or that doing so will contribute in any effective way to achievement of the Directive;
• excluding domestic clients from the definition of client was done on the basis that it was inappropriate to place duties under occupational health and safety law on persons for whom the project is neither a business undertaking nor a source of employment;
• in the case of the trigger for appointments and plans, we believe that our approach exempts hundreds of thousands of smaller projects from requirements whose onerousness is very disproportionate to the health and safety benefits for these projects;
• for shorter projects the requirements for co-ordinators and formal plans is unduly burdensome to the small companies frequently involved in them.

The Memorandum went on to say that that HSE’s approach to these issues is the basis of a Simplification Proposal that has been put to the EC in respect of the Directive and discussions with the EC on these matters are continuing.  

Depending on the outcome of the ongoing discussions, it may be necessary to bring forward amending legislation in due course that may have a fundamental shift in the UK CDM Regulations

On 20 June 2008, inspectors of the Office for Safety in the Workplace of the Autonomous Province of Bolzano in Italy carried out an inspection of the works on a construction site located in the municipality of Merano for the replacement of the roof of a dwelling house measuring approximately 6 to 8 metres in height.   Mrs Nussbaumer was the client supervisor.   The protective railing placed along the edge of the roof, the crane used to hoist up materials and the workforce were provided by three different contractors all present on the site at the same time.  

Under the Italian legislation applicable, no building permit was required for the works.   However, a certificate confirming that the works had started was lodged with the municipality.

In the course of that inspection, the question arose as to whether, in the circumstances, a safety coordinator should have been appointed for both the project preparation stage and the stage at which the works were being executed, as required by not only Article 3(1) of Directive 92/57 but also Article 3 of Legislative Decree No 494/96, irrespective of the fact that such an appointment is not required under Article 90(11) of Legislative Decree No 81/08.

The referring court states that, in accordance with Article 90(3) and (4) of Legislative Decree No 81/08, a coordinator for the planning and the execution of the works must be appointed for any site in which more than one contractor is present. However, under Article 90(11) of the decree, the provisions in Article 90(3) are not applicable to private works not subject to planning permission.   According to that court, acting on the assumption that a construction site on which private works are carried out entails work that is modest in scale and devoid of risks, the national legislature failed to recognise that works which are not subject to planning permission may also be complex and hazardous and therefore require a coordinator to be appointed for the project preparation stage. Moreover, since Article 90(4) refers to Article 90(3), the client supervisor is also exempt from the requirement to appoint a coordinator for the execution of the works.

The current issue is whether and to what extent will the ‘Nussbaumer’ case affect these discussions.   If the EC’s eventual decision and possible overruling of UK law forces the implementation, it will have potentially massive implications to the way the UK construction industry operates ~

• Domestic construction could be included within the duties under the Regulations,
• Part 3 of the CDM Regulations 2007 which deals with ‘Notifiable Projects’ will need to be completely rewritten to reflect the fundamental change in the trigger for appointments.

The Italian case involved a ‘private project’ where some roof work was done to a domestic house for which planning permission was not needed and the Italian interpretation of the Directive there was no requirement to appoint co-ordinators for safety and health matters or produce a safety and health plan.  

The key issue in this case was that there was more than one contractor present on the construction site.

The implications from the judgement (preliminary ruling) make clear that the Directive states that:

• · there is an unequivocal requirement to appointment of co-ordinators for safety and health matters (our CDM-C and PC) on any construction site on which more than one contractor is to be present and does not permit any derogation from that requirement
• · after consulting both management and the workforce there can be derogation from the requirement to draw up a safety and health plan except where it is a question of work involving ‘particular risks’ or work for which prior notice (our notification) is required. It is not dependent on the number of contractors on site.

It should be noted at this stage that a ruling from the European Court of Justice is just about the interpretation of European Union Law and it does not decide the dispute itself. It is for the National Court or Tribunal, in this case in Italy, to dispose of the case in accordance with the decision of the European Court of Justice. In addition, any decision by the European Court of Justice is similarly binding on other National Courts before which a similar issue is raised.

On the grounds of the case, the European Court of Justice (Fifth Chamber) ruled:

Article 3 of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) must be interpreted as follows:

– Article 3(1) precludes national legislation under which, for private works not subject to planning permission on a construction site on which more than one contractor is to be present, it is possible to derogate from the requirement imposed on the client or project supervisor to appoint a coordinator for safety and health matters at the project preparation stage or, in any event, before the works commence;

– Article 3(2) precludes national legislation under which the requirement for the coordinator responsible for the execution stage of the works to draw up a safety and health plan is confined to the situation in which more than one contractor is engaged on a construction site involving private works that are not subject to that obligation and which does not use the particular risks such as those listed in Annex II to the directive as criteria for that requirement.

The conclusion to be drawn from the case is that for any construction project on which there is more than one contractor on site, a CDM-C and PC must be appointed. A CDM-C and PC can only be appointed by a client so we cannot have the situation where a domestic client has no duties otherwise they cannot make the appointments. Once a CDM-C and PC are appointed we then have requirements associated with the construction phase plan without derogation on the plan associated with not having particular risks.

It follows therefore that, based on our current regulations, in addition to Part 2 and Part 4 the additional requirements in Part 3 should be applicable to all projects on which more than one contractor is present apart from notification if the construction phase is less than 30 days or 500 person days of work.

There clearly seems to be no alternative in respect of the interpretation other than to consider we should generally have full application of CDM 2007 to all construction projects, irrespective of who is the client or how long the construction phase is, if more than one contractor is present.

Ed.