CDM Regulations: compliance with mobilisation provisions

Our April briefing note discussed the new Construction (Design and Management) Regulations 2007 (the CDM Regulations). The issue on which we are being asked to advise more than any other, is the requirement to provide the principal contractor with a 'mobilisation period'. This is the period for planning and preparation before construction work is expected to start on site. In particular, clients are unsure what considerations should be taken into account when deciding how long this period should be.

First, it may help to understand why this mobilisation period has been included in the CDM Regulations. While the 1994 CDM Regulations focussed heavily on improving the principal contractors' health and safety records, the new CDM Regulations impose greater duties on a 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. Ensuring sufficient time is given to all duty holders (including the principal contractor, other contractors and designers) at all stages of a project is a theme running through the 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. Guidance on what should be included is contained at Appendix 2 of the Approved Code of Practice. 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, 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 Health and Safety Executive 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.

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, 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.

How long should the mobilisation period be?

There is no one time period that can be used for every development.

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

The size, resource available to the principal contractor and the activity to be undertaken are all relevant factors. 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.

Final word of warning!

In the event of an investigation by the Health and Safety Executive, a short mobilisation period may be taken as a lack of proper planning and therefore a breach 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 for failing to ensure, so far as is reasonably practicable, the health, safety and welfare of your employees and others. Failure to comply with the CDM Regulations and the 1974 Act is a criminal offence. Directors, officers and managers of your business 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 their neglect. The penalties for individuals include both fines and potential imprisonment.

While developments are naturally driven by time constraints, stepping back and allowing time for proper preparation may avoid unnecessary accidents, save lives and minimise

Hints & Tips

When deciding the required mobilisation period for a development, bear in mind the following hints and tips.

Liaise with the principal contractor. Ask how much time he needs and unless there is a good reason (lack of time not being one) respect and adopt this time period.

Liaise with and seek the advice of the CDM Co-ordinator.

Make sure that all discussions about mobilisation periods are in writing, kept on file and relevant parts are given to any party that may be affected by the mobilisation or the activity. Record the factors you considered and the reasons why you decided on a particular mobilisation period.

Be aware of the detrimental impact tight timescales may have on health and safety and your potential liabilities if you try to restrict the timescale unreasonably.

Ensure sufficient time is allocated not only to the mobilisation period but also to each stage, both pre-construction and construction. The allocated time should be sufficient for each activity to be undertaken and should be reviewed and updated as necessary.

Understand that 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. There is a limit to how many contractors can work on a site and, if time is short, consider employing more competent workmen, rather than just more workmen.

Remember no one period is going to be acceptable as the mobilisation period for all developments. You must be able to demonstrate that you have considered and reached an appropriate mobilisation period for each specific development, i.e. 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.

Be wary during tender reviews of any contractor who timetables a shorter mobilisation period than any other. They could just be desperate for the work and not leave time for proper planning, leaving you open to liability.

Remember to build in the time needed to make applications and receive consent (e.g. to the local authority to close a road for demolition or to remove asbestos) into the mobilisation period.

Remember that a client should not allow the construction phase to start until appropriate welfare facilities are provided on site. Don't forget to build services connections (e.g. to connect water for washing facilities) into the mobilisation period.

Note that Amendment 1 to JCT05 requires you 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.