For designers
What happens if the client does not appoint a principal designer?
Short answer
Nothing lapses. On a domestic project, regulation 7(2) of CDM 2015 makes the designer in control of the pre-construction phase the principal designer, and the contractor in control of the construction phase the principal contractor, by operation of the regulation rather than by anyone's choice. On a commercial project, regulation 5(3) leaves the client carrying the principal designer's duties in regulations 11 and 12 themselves. Either way the duties land on somebody who has usually not priced for them or been told.
The rule, in both directions
Commercial client. Regulation 5(3): if the client fails to appoint a principal designer, the client must fulfil the duties of the principal designer in regulations 11 and 12. Regulation 5(4) does the same for the principal contractor.
Domestic client. Regulation 7(3) disapplies regulation 5(3) and (4), and regulation 7(2) puts the roles somewhere else instead: the designer in control of the pre-construction phase is the principal designer, and the contractor in control of the construction phase is the principal contractor.
HSE puts the same point in ordinary words on its principal designers page: on a domestic client project where the client does not appoint a principal designer, the role must be carried out by the designer in control of the pre-construction phase.
Who is the designer in control of the pre-construction phase?
The regulations do not give a list, which unsettles people. In practice it is whoever is actually leading and coordinating the design as the project is put together. On an ordinary domestic job that is the architectural practice or architectural designer producing the drawings the job is built from, not the structural engineer who designs one element within it.
A worked example. A homeowner engages an architectural practice for a rear extension. The practice produces the planning and building regulations drawings and coordinates the package. A structural engineer designs the beams. A builder is chosen later and brings in an electrician and a roofer. Nobody signs a principal designer appointment.
On that project regulation 7(2) makes the architectural practice the principal designer, because it is the designer in control of the pre-construction phase. It carries regulation 11 and 12 duties, including the health and safety file, whether or not it has ever discussed the role, been paid for it or told the client.
What an exclusion in your appointment does and does not do
Design practices commonly exclude the principal designer role from their fee proposals. That exclusion is worth having. It is honest, it records what was agreed, and it makes the fee proposal accurate.
What it does not do is change how regulation 7(2) allocates the role. The regulation allocates by reference to who is in control of the pre-construction phase, not by reference to what a private contract between the designer and the client says. A contractual exclusion records that you did not agree to do the work for a fee. It is not a mechanism for moving a statutory role somewhere else.
The clean fix is an appointment, not a clause. If the client appoints a principal designer in writing, regulation 7(2) has nothing to do: the role is held by whoever was appointed. That is the only route that actually puts it somewhere else, and it is also the route that means the work gets done.
This is a general explanation of how the regulations are structured, not legal advice about your appointment. See how we write this.
What it means for the builder
The other half of regulation 7 is easy to miss. On a domestic project the client duties in regulations 4(1) to (7) and 6 pass to the principal contractor, unless the principal designer has agreed in writing to take them. So on an unappointed domestic project the builder is simultaneously the principal contractor by default and carrying the homeowner's client duties. That is a large inheritance for somebody who quoted for an extension.
What to do about it
If you are the designer: raise the appointment with the client early, in writing, and say plainly what happens if it is not made. Either take the role and be resourced and paid for it, or help the client place it with someone who is. Both are respectable; the position that is not respectable is an exclusion clause and silence.
If you are the client: make the appointment. It is a short document and it is the one CDM duty that does not move away from you on a domestic project.
If you are the builder: ask, before you start, who has been appointed principal designer in writing. If the answer is nobody, you now know what you are standing in.
Sources
- CDM 2015, regulation 5: appointment of the principal designer and the principal contractor legislation.gov.uk
- CDM 2015, regulation 7: application to domestic clients legislation.gov.uk
- CDM 2015, regulation 11: duties of a principal designer legislation.gov.uk
- CDM 2015, regulation 12: construction phase plan and health and safety file legislation.gov.uk
- HSE: principal designers, roles and responsibilities hse.gov.uk
- HSE: domestic clients, roles and responsibilities hse.gov.uk
Hand us the CDM principal designer role
You keep the design appointment. Build your client's quote in about two minutes and send them the link to check and send on, so the appointment is theirs and the admin is not yours.
Build your client's quote →Not sure yet? read how it works for practices.