Development Leases - the role of the Client in terms of the CDM Regulations

The poor health and safety record of the UK construction industry has long been an issue for government. The latest attempt to regulate the industry is the Construction Design and Management Regulations 2015 (the Regulations) which identify and impose responsibilities and duties on the various parties involved in the delivery of projects falling within the categories of clients, designers and contractors.

Here we examine how the Regulations deal with the situation where there is more than one party that can be regarded as “the Client” for the purposes of the Regulations.

More than one ‘Client’ under the Regulations where development obligations are imposed on Tenants

The Regulations define a “client” for the purpose of the Regulations as “any person for whom a project is carried out”.

Where a landlord imposes development obligations upon a tenant, the landlord will fall within the scope of this definition as well as the tenant (notwithstanding the tenant will be the party directly employing consultants and contractors designing and carrying out the works for a project).

The default position under the Regulations is that where there is more than one party falling within the definition of “client” the Regulations apply equally to all of those parties.

Agreement by parties as to the ‘Client’ for the Regulations

Landlords will want to avoid the responsibility for performance of the client duties in terms of the Regulations and ensure that these are borne by their tenants.

Where there is more than one party falling within the definition of client for any project, the Regulations permit the relevant parties agreeing in writing which of them is to be treated as the only client for the purpose of the Regulations (Regulation 4(8)).

Accordingly, landlords should incorporate such an agreement in the terms of any relevant leases imposing development obligations to record in writing that the tenant shall be the only client for the purposes of the Regulations.

Residual Duties where agreement of ‘the Client’ by parties

Whilst such an agreement in writing among relevant parties will impose principal responsibility as “client” for the Regulations upon one party, the other parties will still have residual duties under the Regulations.

Landlords should appreciate and have regard to these residual duties which are as follows:

• to co-operate with any other person working on or in relation to a project to the extent necessary to enable that person to fulfil its duty or function (Regulation 8(4));
• to provide pre-construction information as soon as practicable to every designer and contractor appointed or being considered for appointment to the project (Regulation 4(4)) (but only to the extent such information is in the possession of the landlord); and
• to ensure any information provided is comprehensible and provided as soon as is practicable (Regulation 8 (6)) (but again only to the extent that relates to any information which is in the possession of the landlord).

Get in touch

If you would like to speak to Harper Macleod about the CDM Regulations and their application, we would be delighted to help.

Michael Conroy   |   0141 227 9316

The small print: This blog is for information purposes only and should not be construed in any way as providing legal advice.