The new Construction (Design and Management) Regulations 2007 require the client to allow a mobilisation period to each principal contractor. Sophie Ellis of Wragge & Co LLP explains this new requirement and provides some practical advice to ensure compliance with this provision.

Key Points

• The Construction (Design and Management) (CDM) Regulations 2007 introduced a new obligation on the client to allow a principal contractor a 'mobilisation' period.
• The mobilisation period should allow sufficient time for a principal contractor to plan and prepare for the construction phase.
• The duty applies to both notifiable and non-notifiable projects.
• A short mobilisation period may indicate a lack of proper planning and therefore a breach of the CDM Regulations.

The mobilisation period required under the CDM Regulations is the period that has to be granted by the client to a principal contractor for planning and preparation before construction work is expected to start on site. This will include not only time to draft a suitable construction phase plan, but also to seek out and hire a competent workforce, procure necessary equipment, and obtain and set up suitable welfare facilities on site. This new duty did not exist under the 1994 CDM Regulations, and clients should be aware of the considerations to be taken into account when deciding how long this period should be.

Why has the mobilisation period been introduced?

While the 1994 CDM Regulations focussed heavily on improving principal contractors' health and safety records, the new CDM Regulations impose greater duties on the client and prevent responsibility for these duties being passed to an agent. Arguably, it is the client who drives factors such as time and cost, and who therefore has the greatest influence over risk management and can have the greatest impact on the health and safety of all site workers.

One of the main aims of the CDM Regulations is to 'apply the principles of prevention', meaning that all parties must be allowed sufficient time to consider and plan the construction phase in order that potential health and safety hazards can be identified and minimised. If this planning is hurried, hazards may be overlooked, which could lead to accidents during the actual construction phase. Principal contractors, in conjunction with other duty holders (such as the CDM co-ordinator, other contractors and designers), should have enough time to review all information, plan the construction phase, find adequate numbers of competent staff and collect and mobilise appropriate resources, including on-site welfare facilities.

The Health and Safety Executive (HSE) has indicated that it was increasingly seeing pressure being put on principal contractors (and all parties involved in the design and construction of works) to comply with short and sometimes unrealistic time limits. This in turn was leading to shorter, if any, time being allowed for planning and preparation, resulting in hazard assessment and the principles of prevention being overlooked. The introduction of the mobilisation period is intended to reverse this trend.

Ensuring sufficient time is given to all duty holders at all stages of a project is a theme running through the new CDM Regulations.

The mobilisation duty

Clients have a duty in all projects (notifiable and non-notifiable) to provide every designer and contractor with pre-construction information which must include all relevant information affecting the site or construction work. The free flow of information between parties is another central theme to the CDM Regulations. Pre-construction information should consist of all relevant information in the client's possession "affecting the site or the construction work". This may include information such as ground investigation reports, the end use of the project and any existing health and safety files.

Guidance on what should be included in the pre-construction information is contained at Appendix 2 of the Approved Code of Practice (ACoP). Regulation 10(2)(c) states that this pre-construction information must include the "minimum amount of time before the construction phase which will be allowed to the contractors appointed by the client for planning and preparation for construction work".

Where a project is notifiable (i.e. where a project is to last more than 30 days or involve more than 500 'person days'), the CDM co-ordinator must provide the client with suitable advice and assistance on the adequate time to be allowed to a principal contractor for mobilisation, although this is ultimately the client's decision. The CDM co-ordinator will notify the HSE of the agreed mobilisation period and the principal contractor must in turn inform each contractor (i.e. the sub-contractors) of the minimum amount of time they will each have to plan and prepare before work commences on site.

Further, it must not be forgotten that for notifiable projects, the client must not allow the construction phase to start until he is satisfied that the principal contractor has prepared a compliant construction phase plan and adequate welfare facilities (as set out at Schedule 2 of the CDM Regulations) are provided for on site.

Demolition works

Demolition works, although usually short, have special mention in the CDM Regulations due to their high risk nature. The ACoP states that the mobilisation period "is particularly important where the project involves demolition work – contractors must be given sufficient time for planning and safe execution of any demolition activities".

How long should the mobilisation period be?

The most important fact to note is that there is no one time period that can be used for every development.

Each project will be different in size and nature and will therefore have different requirements. The mobilisation period for each development should be properly thought out and analysed by the client, principal contractor and CDM co-ordinator, taking into account the underlying principles of communication, co-operation and good management contained in the CDM Regulations.

Relevant factors include:

• the size of and resources available to the principal contractor;
• the available funds;
• the ability of the principal contractor to mobilise all site facilities and staff;
• whether permissions (for example for road closures) need to be sought;
• whether water, electricity or other service connections have to be made to the site to allow sufficient welfare facilities to be set up;
• the activities to be undertaken during the lifetime of the project;
• whether any specialist equipment has to be collated;
• whether any specialist expertise should be sought; and
• the seasons during which a project is to take place.

It may be the principal contractor is large enough to mobilise all site facilities and staff in a matter of days. Other companies, perhaps due to their smaller size, other commitments or the activities that they are performing, may require several weeks. It may be that due to the complexity of a development, special resources and disciplines must be sought, resulting in the required mobilisation period being several weeks longer.

Practical hints and tips

When deciding the required mobilisation period for a development the client should consider a number of points. Firstly, the importance of liaising with the principal contractor; the client should ask the principal contractor how much time he anticipates will be needed for mobilisation and, unless there is a good reason (lack of time not being one), this period should be respected and adopted.

Secondly the necessity to liaise with and seek the advice of the CDM co-ordinator at all stages throughout the project, including in relation to the mobilisation period.

All discussions about mobilisation periods should be in writing, kept on file and relevant parts given to any party that may be affected by the mobilisation or an activity. The client should record the factors that have been considered and the reasons why a particular mobilisation period has been decided on. Merely 'paying lip service' to this and creating paperwork for paperwork's sake, in an effort to prove compliance, will be frowned upon by the HSE and may detract from ensuring that all duty holders are concentrating fully on all potential health and safety issues.

The detrimental impact tight timescales may have on health and safety and the client's potential liabilities if it tries to restrict the timescale unreasonably. The client should build a sensible estimated time for mobilisation into the initial project planning and timetables.

Sufficient time must be allocated not only to the mobilisation period but also to all stages of a project, both pre-construction and construction. The allocated time should be sufficient for each activity to be planned as well as undertaken in a safe and considered manner and should be reviewed and updated as necessary.

Health and safety risks cannot always be reduced by making increased payments. Sometimes it may be that only the provision of more time will ensure a properly planned and resourced project.

The tendency, especially if a project is running late, simply to hire more staff and provide more resources in an attempt to meet deadlines is not the answer. Clients must appreciate that there is a limit to how many contractors can work on a site. If time is short they should consider employing more competent workmen, rather than just more workmen. Remember that having more bodies working on a site can in itself create a hazard.

No one period is going to be acceptable as the mobilisation period for all developments. The client must be able to demonstrate that it has considered and reached an appropriate mobilisation period for each specific development. For example simply deciding on a blanket 'two-week period' to be used across the board for all developments suggests no thought has been given to the appropriate period.

During a tender review, a contractor who timetables a shorter mobilisation period than any other may be doing so because it is desperate for the work. That contractor may not have left sufficient time for proper planning, leaving the client open to liability. Also, clients should consider whether a contractor who timetables an insufficient mobilisation period is competent for the purposes of the CDM Regulations.

Requisite time should be built into a mobilisation period for the making of applications and to receive consents (e.g. application to the local authority to close a road for demolition or to remove asbestos).

The construction phase cannot start until appropriate welfare facilities are provided on site. The time needed for services connections (e.g. to connect water for washing and toilet facilities) should be timetabled into the mobilisation period.

Amendment 1 to JCT05 requires the client (or most probably their agent or quantity surveyor) to insert the mobilisation period into the building contract. Although each development will be assessed individually, the HSE has indicated that it generally assesses the mobilisation period from the date of a letter of intent or from when payments are first made to the principal contractor. A principal contractor is unlikely to start planning properly until they are being properly recompensed.

Breach of the duty to provide a mobilisation period

In the event of an investigation by the HSE, a short mobilisation period may be taken as a lack of proper planning and therefore a breach by the client of the CDM Regulations. It may also amount to a breach of sections 2 and/or 3 of the Health and Safety at Work etc Act 1974 (the HSWA) for failing to ensure, so far as is reasonably practicable, the health, safety and welfare of the client's employees and others.

Failure to comply with the CDM Regulations and the HSWA is a criminal offence. Directors, officers and managers may also be vulnerable to personal prosecution for breaches of the legislation where the breach is shown to have been committed with their consent, connivance or to have been attributed to by their neglect. The penalties for individuals include both fines and potential imprisonment.

Final word of warning!

Compliance with the CDM regulations must be taken seriously. Although it takes time to come to terms with the intricacies and practicalities of new legislation, developers should have already begun to put in place procedures to ensure compliance.

While developments are naturally driven by time constraints, stepping back and allowing time to all appointees for proper preparation may avoid unnecessary accidents, save lives and minimise the risk of prosecution of both a business and an individual. The HSE has indicated that it will be instigating proceedings if the new CDM regulations are breached.

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For further information about this published aticle, contact Kathryn Hobbs on +44 (0)121 213 2397, Alexa Highfield on +44 (0)121 213 2396 or Amie Ryalls on +44 (0)121 213 2360

This published article may contain information of general interest about current legal issues, but does not give legal advice.