1 | arthur cox
Group Briefing
October 2013
key contacts
For further information on any of the
items discussed, please contact either of
the lawyers listed below or your usual
Arthur Cox contact.
martin cooney
associate
+353 1 618 0312
martin.cooney@arthurcox.com
niav o’higgins
Partner
+353 1 618 0314
niav.ohiggins@arthurcox.com
This document contains a general
summary of developments and is not
a complete or definitive statement of
the law. Specific legal advice should
be obtained where appropriate.
health & safety
Bringing it Home!
Construction Regulations
2013
On 7 October 2010, the European
Court of Justice ruled that the Mobile
Sites Directive (92/57/EC) applied to
the owner of a private dwelling house
carrying out works on her house. The
case concerned a prosecution taken by
an Italian health and safety authority,
against the home owner, in respect of
her failure to appoint the equivalent
of a project supervisor for the design
process.1 Italian law did not require her
to do so at the time and the Italian court
had referred the case to the European
Court of Justice for guidance on whether
the Italian legislation was in breach of
the Mobile Sites Directive. The European
Court of Justice ruled that the Mobile
Sites Directive did not allow national
legislation to provide a derogation for
domestic clients.
The Mobile Sites Directive was first
implemented in Ireland through the
Safety, Health and Welfare at Work
(Construction) Regulations 1995
and subsequently updated in the
Safety, Health and Welfare at Work
(Construction) Regulations 2001 and
then the Safety, Health and Welfare at
Work (Construction) Regulations 2006
and associated amendments. None of
these regulations applied to domestic
clients as the definition of a “client”
The corresponding term used in the Directive is
“coordinator for safety and health matters at the
project preparations stage”.
1
meant a person for whom a project was
carried out “in the course or furtherance
of a trade, business or undertaking, or who
undertook a project directly in the course
or furtherance of such trade, business or
undertaking”. Obviously this was at odds
with the European Court of Justice’s
decision and it was clear that the Mobile
Sites Directive had not been correctly
transposed into Irish law.
On 1 August 2013, the Safety, Health
and Welfare at Work (Construction)
Regulations 2013 (the “2013
Regulations”) came into effect.
The 2013 Regulations replace and
revoke the 2006 Regulations (and all
amending regulations) and their main
objectives are (i) to fully transpose
the requirements of the Mobile
Sites Directive and (ii) to reduce the
regulatory and administrative burdens
while maintaining health and safety
standards. Some of the main changes
brought about by the 2013 Regulations
are discussed below:
Definition of the ‘Client’
The Regulations define a “client” more
broadly as a “person for whom a project
is carried out”. This is in line with the
terms of the Mobile Sites Directive and
means that the 2013 Regulations apply
to a person having construction work
carried out on their own home.
health & safety
2 | arthur cox
Bringing it Home! Construction
Regulations 2013
The client’s key duties under the 2013
Regulations include:
»» Appointing competent persons to carry
out the design and construction work;
»» Appointing competent Project
Supervisors for the Design Process
and for the Construction Stage,
where necessary;
»» Keeping a Safety File;
»» Sending notification of the works
to the Health and Safety Authority
where necessary.
Certain of these duties are slightly eased
for the domestic client. For example,
with a domestic client, the responsibility
will sit with the designer, contractor or
project supervisor (as the case may be)
to establish that they are competent.
Likewise, the obligation on clients to
provide copies of safety and health
plans to persons being considered for or
tendering for the role of PSCS, does not
apply to work on domestic dwellings
until a PSCS is appointed.
The derogation from the requirement
to appoint project supervisors has
been extended for all clients. In the
2006 Regulations, the duty to appoint
competent project supervisors did not
apply to “routine maintenance, cleaning,
decoration or repair within a structure”,
unless the work involved particular risk,
there was more than one contractor
or the work involved was expected to
exceed 30 working days or 500 person
days. This derogation now applies to all
simple work of short duration i.e. where
no particular risks arise, there is only one
contractor and the work does not last
longer than the stated period.
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New Duties of Project Supervisors,
Designers and Contractors
As noted above, where a client appoints
project supervisors, designers or
contractors for construction work on
their domestic dwelling, Regulation 6(7)
now provides that it is for the project
supervisors, designers or contractors
to demonstrate to the client that they
are competent to complete the work
and will allocate adequate resources to
complete it safely and in accordance
with their duties under the 2013
Regulations. In effect, the appointees
must be able to demonstrate that they
can work safely and can manage the
risks to their employees and to the
homeowner and their family.
The PSDP is no longer required to keep
a copy of the safety and health plan for a
period of five years after its preparation.
However, the PSDP continues to be under
a duty to keep a copy of the safety and
health plan available for inspection by an
inspector for the duration of the project.
Many of the duties of the PSCS remain
unchanged. Similar to the position with
the PSDP, the PSCS is no longer required
to keep records or documents for five
years after the date of their preparation.
Further, the contractor is now only
required to provide relevant extracts
from its Safety Statement to the PSCS, in
so far as they are likely to affect the safety,
health or welfare of any person at work
on the construction site, or might justify
a review of the safety and health plan.
As before, Regulation 15 sets out the
duties of designers and it is worth noting
that the duty of designers to inform
clients of their obligation to appoint
project supervisors under Regulation 6
now extends to home owners carrying
out work on their domestic dwellings.
A similar duty has now been introduced
for contractors who must promptly
inform the client of the client’s duties
to appoint project supervisors, if
the contractor is not aware of the
appointment of project supervisors by
the client. This can be seen as a means
of ensuring that domestic clients are
advised of their duties, as they may not
be aware of the application of the 2013
Regulations to the proposed works to
their dwellings.
Conclusion
The introduction of the 2013 Regulations
is to be welcomed for its accessibility
and clarity on the duties of commercial
and private clients, project supervisors,
designers and contractors. There has
been some criticism about the increased
financial and regulatory burden that the
2013 Regulations will likely create for
home owners. Nevertheless, it is worth
highlighting that the 2013 Regulations
merely implement the true intention of
the Mobile Sites Directive and whether on
a domestic dwelling or on a commercial
site, the safety and health of people
involved in construction work should
always be paramount. The HSA has
produced two useful guidance documents,
one for homeowners and the other for
contractors and project supervisors, and
these are available to download from the
HSA’s website (www.HSA.ie).
Dublin
+353 1 618 0000
dublin@arthurcox.com
Silicon Valley
London +44 207 823 0200
+1 650 943 2330
london@arthurcox.com
siliconvalley@arthurcox.com
Belfast
+44 28 9023 0007
belfast@arthurcox.com
New York
+1 212 782 3294
newyork@arthurcox.com