KEY LEARNING POINTS
- Understand how health and safety regulations apply to different private homebuilding developments, and alert or discuss the health and safety implications with private homebuilders or their contractors
- Councils have no specific health and safety duties for private homebuilding developments unless they directly bring projects forward themselves
Although the construction industry in the UK has one of the best health and safety records in Europe there are still serious injuries and fatalities among construction workers every year. The construction of new homes poses a number of health and safety risks for private homebuilders, particularly when they are doing a ‘self build’ project where they work on their own and have limited construction experience. There are also risks for the contractors or trades who work for them.
THE CONSTRUCTION AND DESIGN MANAGEMENT REGULATIONS
The Health and Safety Executive (HSE) regulates health and safety in construction through the Construction and Design Management (CDM) Regulations 2015. The CDM regulations are designed to ensure that all construction projects are properly planned and managed in a safe manner.
In 2015 the CDM regulations were revised so that some private homebuilders are now classified as ‘domestic clients’ and therefore have to comply with the legislation. This will mainly affect those private homebuilders that hire sub-contractors to help them construct their homes.
Scope of the Regulations
The CDM regulations place duties on everyone involved in the construction process to properly plan, design and carry out the project. This includes specific duties for clients, contractors and designers. Duties include appointing coordinators who take responsibility for health and safety, preparing health and safety plans and notifying the HSE for certain types of builds.
Part 4 of the regulations sets out a number of provisions that only relate to work carried out on the construction site. Any contractor carrying out construction work, including private homebuilders, must comply with the requirements to ensure that on-site hazards are identified and the risks from these are adequately controlled. Examples of these include: –
- Demolition or dismantling
- Prevention of drowning
- Stability of structures
- Fire and lighting
- Traffic routes
There is also a requirement to prepare a ‘Construction Phase Plan’. This is produced by the ‘principal contractor’ (see below) and must set out the arrangements for securing health and safety for the construction phase. For projects involving more than one contractor, the principal contractor must ensure the Plan is properly prepared. If the project has just one contractor they will need to prepare the Plan. In either case this must be done during the pre-construction phase, before the construction site is set up.
The Plan must also take into account the information from the ‘principal designer’ (see below). During the construction phase, the principal contractor must ensure that the Plan is appropriately reviewed, updated and revised so that it remains effective.
The extent to which these regulations apply to private homebuilding projects depends on what role the private homebuilder takes to procure their home. If the private homebuilder is carrying out the work for a business purpose, or to sell the property directly, then they are not a domestic client, and the whole of the regulations apply.
How do the CDM regulations apply to private homebuilders?
Most private homebuilders employ an architect and a main contractor to design and construct their homes. In this situation all a private homebuilder needs to do is to nominate, in writing, their architect and builder as their ‘principal designer’ and ‘principal contractor’. This effectively absolves the private homebuilder from any health and safety responsibilities.
However, because private homebuilding can take many forms there are some grey areas, particularly where numerous parties are involved in the construction process. In these situations it may be wise for them to seek professional advice.
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For the purposes of this Toolkit we have made the following definitions:
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- ‘self and custom built homes’ are properties commissioned by people from a builder, contractor or package company (this is known as ‘custom build’ housing). When people physically build themselves, sometimes with help from sub-contractors, this is known as ‘self build’ housing. We call all these people ‘private homebuilders’.
- ‘serviced building plots’ are shovel-ready parcels of land with planning permission, laid out and ready for construction with access and utilities/services provided to the plot boundary. Some private homebuilders just purchase a plot; others opt for a ‘shell’ home (that they then finish off), or they select from an extensive menu of options offered by developers/builders.
- ‘group projects’ mean homes built by private homebuilders who work as a collective.
Statutory definitions are provided in section 9
of the Housing and Planning Act 2016 which amends the Self-build and Custom Housebuilding Act 2015.
This Briefing Note will be revised when the Regulations to support the commencement of the Self-build and Custom Housebuilding Act 2015 and the Government’s Right to Build policy are finalised.
IMPLICATIONS FOR SELF-BUILD PROJECTS
Although there is usually only one architect or designer on a private homebuilding project, there may be several contractors, depending on the build route chosen. The rules apply differently for each case.
For DIY projects
where a private homebuilder constructs the home themselves, regardless of scale, they will continue to be exempt from CDM regulations. This is because no one is deemed to be ‘at work’ under the Health and Safety at Work etc. Act 1974.
For shell build or self finish projects
where the private homebuilder contracts with a builder, timber frame provider or other contractor to build the shell of the home and then sources and manages the finishing trades until completion, there is no single contractor that can be appointed as the ‘principal contractor’. For example a timber frame company may be responsible for erecting much of the superstructure of the home but they cannot be held responsible for health and safety during site preparation or groundwork before they arrive on site.
In this situation the private homebuilder is no longer running a DIY project but is taking control of the way a person ‘at work’ undertakes construction activities. This means they must comply with all the issues outlined in Part 4 of the regulations. It is important to note that in these circumstances, the private homebuilder’s role is one of coordination and management, not one of supervision. The private homebuilder is entitled to expect the contractors employed to plan, manage and monitor their own work in compliance with regulations, and this should be made clear in any letters of appointment.
For self managed projects
where the private homebuilder sources and manages all the trades required to construct their home, similar considerations apply.
IMPLICATIONS FOR CUSTOM BUILD PROJECTS
Where private homebuilders commission a custom build enabler or developer to build their home for them, the private homebuilder will in most cases appoint the enabler or developer, or a member of their team, to act as the ‘principal contractor’ and ‘principal designer’. This is because they will be responsible for undertaking the whole build to completion.
Where a custom builder or developer hands over a project to a private homebuilder before completion – for example, as a serviced plot for completion by someone else – the contractor building the home would then become the principal contractor and principal designer, as they will be taking responsibility through to completion. Where multiple contractors are involved the regulations would apply as in the case of DIY projects above.
IMPLICATIONS FOR COUNCILS
All councils have a statutory duty under the Health and Safety at Work etc. Act
to ensure they make adequate provision for health and safety regulation in their area, but there are no specific duties on councils under the health and safety regulations when they facilitate private homebuilding projects.
However, where councils make serviced plots available on their own land or where they act as a custom build developer to, for example, provide shell finish homes, they will be considered as ‘commercial clients’ under the regulations. This means they will need to ensure that health and safety legislation is complied with, and they will be responsible for ensuring safety is properly managed, maintained and reviewed throughout the life of the project. This is likely to include the assembly of pre-construction information, such as a health and safety file, which can transferred to the enabling contractor, custom build enabler or developer as part of the design brief for the site.
Where contractors are engaged to service sites for the council it will be for the contractor doing the work to comply with health and safety legislation. This also applies to refurbishment projects. Where more than one contractor is involved, then a principal contractor must be nominated.
Where land is sold to an enabling contractor, custom build developer or to a group of people to bring forward privately built homes, the responsibility to comply with the regulations will transfer to these parties and their appointed principal designer and contractor, regardless of the build route chosen.
Councils may wish to consider the health and safety implications in situations where some plots are built out by self builders as DIY projects, alongside mainstream developers or custom builders that are active on the same site. There are no health and safety reasons to avoid developments like this, but councils should make the private homebuilders aware of their responsibilities so they appreciate the likely risks to them and others on site.
One way of doing this would be to impose a planning condition or include a note on the planning decision notice requiring a copy of the Construction Phase Plan to be sent to the council before development starts. This would ensure that health and safety had at least been considered and that the basic requirements had been addressed.
Be clear about who is responsible for health and safety
Understand how the health and safety regulations apply to different private homebuilding developments, and alert or discuss the implications with private homebuilders or their contractors
ON SITE CONSIDERATIONS
On larger sites private homebuilders may be working on site at different times. In these circumstances a site manager may be needed to help co-ordinate activities, remind them of their health and safety responsibilities, schedule deliveries or arrange space to store materials.
As private homebuilders will have different site access requirements to commercial developers – such as at evenings and weekend – consideration should be given to the erection of temporary fencing and a lockable site gate during the construction phase.
Secure fencing on a multi-plot custom build development in Derbyshire
WHAT HAPPENS IF YOU DON’T COMPLY?
Any breach of health and safety legislation could result in a dangerous, or even fatal, accident. It could also result in construction work being stopped by the HSE or the council, and could lead to prosecution in serious cases.
Homes can also be deemed unsafe to live in, which could require expensive remedial works.
The revised regulations now include a ‘Fee for Intervention’ regime. This means that where the HSE has to take action on a site, then the cost of its visit and any administrative work associated with the intervention can be passed onto the client. However this is expected to be the exception rather than the rule.
You may find the following references useful: –
- Other useful guides such as ‘The Absolutely Essential Heath and Safety Toolkit’ (INDG 344) are available as a free download from the HSE website.
The NaCSBA Research & Development Programme is funded by the Nationwide Foundation and aims to promote the self-build and custom build sector as an affordable route into housing for a greater number of people in the UK.
For further information, please visit:
www.nacsba.org.uk or www.selfbuildportal.org.uk