Conveyancers should be alert to the Construction, Design and Management Regulations 2015 (became law on 6th April of 2015) when considering recent alterations to both freehold and leasehold property.
If your client owns, uses or manages a building and undertake maintenance or minor building work associated with the business premises, your client has a legal obligation to ensure that all work is carried out safely without damaging anyone’s health. The law covers the all aspects of the building project from start to finish such as how it is planned, organised, managed, project time-scales and phases, the contractor, the designer, welfare of the workers and others on site and health and safety record keeping.
It’s a piece of legislation that uses good design and planning to reduce the number of accidents on site. The latest update means that, for the first time, regulations will apply to construction work commissioned by home-owners. Of the 43 fatalities on construction sites last year, three-quarters were on smaller sites, so the change is being implemented to recognise that the risk is not only on larger sites.
If regulations are not adhered to, construction work may have to be stopped, financial charges may be incurred if the HSE has to spend time resolving the issue. For serious breaches your client could be prosecuted.
From a conveyancing perspective the sale of property could be affected if there is any renovation or other work carried out by a builder who does not comply with the rules.
Under the new rules all builders, whatever their size, working in the domestic sector will have to create a construction phase safety plan for all building projects and all domestic projects will have to meet the same basic standards for the provision of welfare facilities as commercial projects.
For the domestic residential market this means that any construction projects finishing after the 6th April need to have a ‘handover pack’ including ‘built drawings or specifications of components that have been installed.
The responsibility of the home-owner to be clear on who is responsible for site health and safety, and chase the relevant documents at the end of the project.
Clients should be aware that their exposure to claims in negligence has potentially been raised as a result of these Regulations. In many cases breach of statutory duty is no longer a cause of action itself (Enterprise and Regulatory Reform Act s69), however statutory duties may still influence the existence of a duty (or the reasonableness of behaviour) in negligence claims. The imposition of a number of positive duties via these Regulations may result in a higher expectation of ‘reasonableness’ in the common law context and may therefore lead to personal injury claims against domestic clients that would not have arisen in the past
If acting for a seller then you should be alert to building works which have commenced but are in still in progress or which have finished after 6th April 2015 and to ask you client to provide evidence of compliance with these regulations. You should be ready to receive and respond to a request for a health and safety pack.
If acting for a purchaser then an enquiry along these lines about any recent works should be raised especially if purchasing a new build property. Equally those who manage a leasehold property should also be asked for these details if recent works have been carried out to a block of flats, for example. Perhaps the LE1 form should be amended to include such question.
In the case of a multi-let building where the landlord retains repairing obligations in respect of parts of the building it may be appropriate to check that the landlord has been given the health and safety file on completion of the tenant’s project. Landlord’s when giving consent for works under a lease should make a condition of a license to require the tenant to produce the health and safety pack.