KOK Tech News – December 2018 – Client Access during Christmas Shutdown / Client and Builders Fined
Firstly, a few words from one of our Senior Principal Designers, Paul Jones, on Regulatory implications relating to shared occupancy building Client access during Christmas / New Year.
Client access to a construction site within a shared occupancy building (e.g. Christmas shutdown)
Whilst the current CDM 2015 Regulations make it clear that once a construction site is established, even within a shared occupancy building, control of access to the construction site is passed on to the appointed Principal Contractor, it is reasonably foreseeable that the Client or appointed representative may need to cross the designated site boundary to undertake essential maintenance activities to plant and equipment not directly under the control of the Principal Contractor. Commonly this is the case in Hospital Trust buildings where the planned or unplanned maintenance, adjustment or isolation of essential M&E services and plant, located within an established construction site, proves necessary. During a typical working day, it is usual for an access protocol (Permit to Access) to be agreed between Client and Principal Contractor prior to commencement of construction activities, however, out of hours access provision can sometimes not be so straightforward, particularly during weekends or, more acutely, an extended site shutdown typically during the Christmas/New Year period.
It should be recognised that the Principal Contractor has duties and responsibilities not only to those directly engaged on a Project but to any others who may be affected by the works. This includes persons who reasonably need access when the site is closed to undertake the type of essential maintenance activities described above. In such cases the identification of reasonably foreseeable hazard and the control of residual risk still apply even though construction activity may not be taking place. Consequently, an access protocol needs to be agreed between Client and Principal Contractor to manage these risks where the Principal Contractor is not available and typically could take the form of a site record to be issued by a designated access key holder to the person requiring access in the absence of the Principal Contractor.
Because no circumstances will be the same and whilst legal control of the site rests with the PC, physical control of the keys may have returned temporarily to the Client or even a tenant, the measures put in place must be carefully considered and properly implemented to suit each site and its specific risks and all appropriate persons/ authorities properly informed.
In practical terms any such out of hours site access protocol should ideally be restricted to Client access only in the case of essential maintenance/control activities or response to alarm conditions (and perhaps this latter is the clue to the procedure).
Courts have handed out £72.6m in health and safety fines during 2017/2018. Within our industry, two of the biggest breaches are working at height, and exposure of hazardous materials.
These risks, which are the cause of prosecutions, hefty fines and life-threatening injuries, can be both safely managed or indeed mitigated entirely with appropriate planning and due diligence.
Council fined six-figures after workers exposed to asbestos in a Primary School
The HSE reported last month that Kent County Council have been fined £200,000 for their handling of asbestos in a local primary school.
The HSE’s investigation found that the Lansdowne Primary School’s caretaker, on the apparent instructions of the then headteacher, had disturbed an asbestos flu pipe and rope gasket while removing an air steriliser in May 2013 to make way for a freezer.
Canterbury Crown Court heard that there was an asbestos survey conducted shortly after in July 2013 ahead of planned building works and graded the exposed flue as a medium risk.
In November 2014, environmental health officers from the council were carrying out a routine food inspection of the school’s kitchen when they found the asbestos rope hanging from the ceiling, therefore, nothing had been done to safely correct the issue or to report to the council. This led to the HSE serving a prohibition notice on the grounds that that they had failed to prevent exposure of employees to asbestos so far as reasonably practicable, and the kitchen was subsequently closed.
HSE inspector Kevin Golding said neither the caretaker nor the headteacher had any asbestos management or awareness training. Though the council did have policies on providing asbestos training, it had failed to check and monitor that they were being properly followed.
Under sentencing guidelines, Judge Heather Norton noted that the starting fine is £400,000 however due to the Council’s early guilty plea and since the cost would “ultimately, even if not immediately, fall to the residents to pay”, the final fine was reduced to £200,000 and full costs of £21,501 to be paid.
Citation: (2018, August).n Council fined after workers exposed to asbestos. Retrieved from: http://www.hse.gov.uk/press/2018/november/london-construction-company-fined.htm
London construction company fined for health and safety failings (working at height)
Chelmsford Magistrates’ Court heard how, on 19 October 2017, MG Corporation Ltd received three prohibition notices after serious breaches of legislation were found on-site during construction work carried out at Barn Hall, Station Road in Wickford. The company was found in contravention of Work at Height Regulations 2005 and The Construction (Design and Management) Regulations 2015.
A follow-up inspection on 13 November 2017 found further working at height breaches. A further prohibition notice was served, although some of the work at height issues on site demonstrated a breach of the original notice. An additional inspection carried out on 5 January 2018 found further work at height breaches.
An investigation by the Health and Safety Executive (HSE) found MG Corporation Ltd had not taken steps to comply with the original prohibition notice and had failed to plan, manage and monitor construction work under their control.
MG Corporation Ltd of Sydney Road, London was found guilty of breaching Regulation 15(2) of The Construction (Design and Management) Regulations 2015 and 33(1)(g) of the Health and Safety at Work Act 1974. The company has been fined £250,000 and ordered to pay costs of £4,790.40.
After the hearing, HSE inspector David King said: “Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards, and especially when enforcement notices are breached.”
Citation: (2018, October). London Construction company fined for health and safety failings. Retrieved from: http://www.hse.gov.uk/press/2018/november/london-construction-company-fined.htm
North-West construction firm fined after multiple safety failings
A Stockport house builder has been fined £76,000 for widespread safety failings at two construction sites.
Manchester and Salford Magistrates’ Court heard that Sherwood Homes Limited had appointed several principal contractors to construct numerous domestic properties at two sites, in Preston and at Tarporley.
The HSE carried out proactive inspections at both sites and found that those working there were exposed to risks that included falls from height, electrocution, inhalation of silica dust and being struck by construction plant.
As a result of the inspections, various enforcement action was taken against the principal contractors involved and the client, Sherwood Homes Limited. The HSE investigation found that the company failed to make suitable arrangements for managing the projects.
There was no F10 notice of construction work displayed, and insufficient welfare facilities at the Tarporley site. The company also failed to give notice in writing to HSE before the construction phase began at the Preston site.
Further investigation found that since early 2014, HSE conducted nine inspections to four separate sites developed on behalf of Sherwood Homes Ltd. During these visits, 16 enforcement notices and nine notification of contraventions were served for various health and safety breaches.
Sherwood Homes Ltd of Stockport were found guilty of CDM Regulations and were fined £76,000 and ordered to pay costs of £14,651.64.
Speaking after the hearing, HSE Inspector Susan Ritchie said: “Clients cannot delegate their health and safety responsibilities.
“CDM 2015 places clear duties on clients making them accountable for the impact their decisions and approach have on the health, safety and welfare of their project.
“In general terms, the Client must ensure that the construction project is set up so that it is carried out from start to finish in a way that adequately controls the risk to health and safety of those who may be affected by it.
“In order to achieve this, they must engage others (such as Designers and Principal Contractors) that have the necessary skills, knowledge, training and organisational capabilities to fulfil their responsibilities under CDM and deliver the project safely on behalf of the Client. If the client fails to do this, HSE will consider taking enforcement action against them.”
Citation: (2018, July). North-West construction firm fined after multiple safety failings. Retrieved from: http://press.hse.gov.uk/2018/construction-firm-fined-after-multiple-safety-failings/
Merry Christmas and a happy new year from the team at KOK!
Regards, John Okey FRICS MCIArb MCInstCES CMaPS Director
Keelagher Okey Klein
Chartered Quantity Surveyors
Chartered Building Surveyors
Registered CDM Consultants
Health and Safety Advisors
26 Museum Street
Tel 01925 654158 Fax 01925 445459 E mail John.Okey@kok-surveyors.com
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