Concerns over the place of Ground investigations in relation to CDM led John Banks and Mouchel Parkman to raise queries with HSE and an APS Legal Adviser. We print below the critical exchanges for the benefit of all those who may encounter similar concerns/ problems.

From John Bans (Technical Director of Mouchel Parkman and Finance Director of APSt) to staff at Mouchel Parkman

“I have attached a copy of the legal advice received from The Association for Project Safety relating to the application of CDM Regulations to Ground Investigations. The reason for asking for a specific ruling was the attitude of the Contractor who despite being informed (via structure and correct ICE Conditions of Contract) that we expected them to be Principal Contractor, moaned about the fact once appointed.  The work is small in scale: 3 days trail pitting, then a break and then returning to undertake the boreholes for 3 weeks.

You will note that the ruling supplied states that it is the project that is important (building schools [and in fact most projects] generally takes longer than 6 weeks to construct)

I know I have started this before but note that:

• All Ground Investigations, allied to a larger project will have a construction period of no longer than 6 weeks (and generally that is the only reason we are doing them), need a CDM Co-ordinator and Principal Contractor

The only exception is where we are undertaking Ground Investigations and there is no final project (seeing if a site is within Part 11A, etc)”

The APS Legal Advisors had responded to John’s enquiries as follows:
“The issue in this query centres around the definition of a project. This is defined in regulation 2 as “a project which includes or is intended to include construction work and includes all planning, design, management or other involved in a project until the end of the construction phase”.

The ground investigation is part of a larger project. The definition of a project extends to include the planning and design, which is taking place at the same time as the ground investigation. It would be artificial to treat the ground investigation works as separate from the project as a whole.

The difference between treating the ground investigation as part of a notifiable project, and treating it as a stand alone project which is not notifiable, need not be very great.  The ground investigation contractor would of course have the duties of a principal contractor, but contractors have duties under CDM2007 in any event if their work is not notifiable (see regulation 13).

Because of the limited nature of the works, the health and safety file would not need to be lengthy or elaborate. The health and safety plan would deal with the specific risks only. Similarly the health and safety file would not need to cover more than the residual risks arising out of the ground investigation works or which have become apparent as the result of those works.”

The Mouchel Parkman Compliance manager had also sought the views of the HSE at Rose Court via infoline and received the following.

“You are correct in every respect. The ground investigation works are part of the notifiable part of the project. It is not unusual for ground investigation works to take place early, perhaps long before the appointment of the Principal Contractor who will be undertaking the management of the main construction phase. However, it is still part of the same overall project.

As the project is notifiable, and the ground investigation is part of the notifiable project, there needs to be a Principal Contractor (PC) appointed. If the only work being carried out on site is the ground investigation, then I do not understand why the ground contractor thinks they are not competent to act as PC- for themselves. The role of PC is essentially to co-ordinate the construction work on site, to ensure that it is carried out safely. I assume the contractor feels confident enough to do their own work safely.  There will be a requirement to fence off the site, liaise and co-ordinate with the school/client to ensure safety to children, staff and the nearby public, and ensure welfare facilities. Their construction phase plan will only need to go as far as covering their involvement at the site. At the end of their work, presumable they relinquish the role of PC, which is subsequently taken up by the PC for the main construction phase plan.

If there will be other contractors working at the same time as the ground investigation contractor, I can understand their reluctance if they have not been in a position to manage other contractors before, and they may not have personnel capable or competent to do this task. Otherwise, acting as PC for their own work only, should not create any extra demands.

Ref: Article taken from APS newsletter/ October 2007