The CDM Answer to the CSC (Construction Site Closure) Conundrum

There has been much debate over the last few days as to what the UK Government’s communications actually mean in terms of whether or not construction sites should close.

What is the current guidance on site closures?

As of the afternoon of 26 March 2020, neither the UK nor Scottish Governments has specifically stated that construction sites should close.

The current Scottish Government guidance is that:

“non-essential business sectors – like construction (unless it is essential construction, such as a hospital) – should close unless and until we can all be clear how operations can be undertaken safely. We will work with the sector – and others – to consider if it is possible to produce appropriate guidance on that specific point. Unless and until such guidance is issued, non-essential construction sites should stay closed”.

At the moment, that is just guidance, but the likelihood is that the Scottish Government’s position in relation to the closing of (non-essential) sites will be given full statutory effect in the near future following the coming in to force of the Coronavirus Act.

Clarification of the position through the introduction of statutory measures will come as a relief to most in the construction industry – at least they will know where they stand legally.

What is the CDM Regulation context?

Contractors and Clients alike must not forget that, even without further government clarification, they remain under strict obligations under the Construction (Design and Management) Regulations 2015 (“the CDM Regs”)

Regulation 4 of the CDM Regs puts an obligation upon Clients to make suitable arrangements for managing projects including the allocation of sufficient time and other resources. It goes on to say that arrangements are suitable if they ensure that the construction work can be carried out, so far as is reasonably practicable, without risks to the health of any person affected by the project.

For Contractors, Regulation 15 states that they must plan, manage and monitor construction work carried out to ensure that, so far as is reasonably practicable, it is carried out without risks to health.

Both Clients and Contractors, therefore, regardless of what communications are coming out of Government, need to think very carefully about whether construction operations can be carried out without risks to health.

In formulating a policy position on that issue, there are two key phrases to draw from the highlighted regulations:

a) The reference to “the allocation of sufficient time” in regulation 4; and
b) The references in both regulations 4 and 15 to “so far as is reasonably practicable”.

The “so far as is reasonably practicable” phrase means that Clients and Contractors are not under an absolute obligation to prevent harm befalling any person. So, for example, if an activity is inherently dangerous and no level of safety precautions or clever design can ever completely remove risk then so be it.

But consider this: Clients also need to allow sufficient time. If allowing time is something that means an activity is no longer inherently dangerous then allowing time is something they need to do if to do so is reasonably practicable.

What should Clients and Contractors do in light of the CDM Regs?

The bottom line is, having personnel on a construction site (which, undoubtedly, will involve them touching the same surfaces, if not also being in close proximity to each other) will increase the risk of infection (and therefore create a risk to health). If that risk can be managed by giving the contractor more time to complete (thereby giving the Contractor the time to temporarily shut the site down), and allowing time is reasonably practicable in the circumstances, then the Client should do just that.

Allowing additional time might not be reasonably practicable in the context of emergency repair work or where the project is for health or national security purposes. With a bit of perspective on the bigger picture, however, the giving of time in most (if not all) other cases should probably end up being viewed as reasonably practicable.

What are the legal consequences of getting this wrong?

As with all issues under the CDM Regs, the chances are the application of the Regs to any given site will only ever be analysed with the benefit of hindsight after something has gone wrong (e.g. a spike in infections amongst personnel working on a particular site). It is, therefore, not beyond the realms of possibility that (regardless of what the communications from Government are) a Client or Contractor that allows works to continue on site, unless there is a truly critical reason for them to do so, may well end up being prosecuted under the CDM Regs.