Health and safety: access to files
22 December 2017
Given lawyers’ concern about access to building health and safety files, Tony Baker considers proposals to deposit documents with the Land Registry
The requirements for buildings to have an associated health and safety file have been in force since the introduction of the Construction (Design and Management) Regulations 1995 (CDM).
Although it is not possible to establish how many such files have been produced since then, it is likely to be more than a million. However, it is equally likely that many of these have been lost or simply discarded, together with copies of drawings and other information that might have been useful to future building owners or occupiers.
The issue of access to health and safety files has been raised by lawyers who, quite correctly, are now asking for copies of these as part of the conveyancing process. This does, however, prompt many questions relating to the purpose of the file, its content and the extent of any additional information that might be included in it.
The requirement to produce a file comes into effect when construction work is carried out, and it is essentially project-based. The current requirements are covered by regulations 12(5) to 12(10) of the CDM Regulations 2015.
Where a construction project relates only to part of an existing building or structure, then the file just needs to cover that part of the premises where works are carried out.
Unless it is compiled for a new-build project, the health and safety file will not include all the structural elements, the shell and core or all the mechanical and electrical services
For example, in a large, multi-storey building let to numerous tenants, whether they occupy complete floors or parts of floors, the file only has to cover the specific area where works are carried out. Over the years, however, this could result in many separate files each covering different parts of the building, without any proper coordination in the way they are prepared.
Unless it is compiled for a new-build project, the health and safety file will not include all the structural elements, the shell and core or all the mechanical and electrical services.
The file content
CDM Regulation 12(5) 2015 states: 'During the pre-construction phase, the principal designer must prepare a health and safety file appropriate to the characteristics of the project which must contain information relating to the project which is likely to be needed during any subsequent project to ensure the health and safety of any person.'
This could include, for example, any information that relates to asbestos-containing materials that have been encapsulated rather than removed, buried cables and pipes, post-tensioned structural elements and other items that may not be immediately obvious.
There is no requirement for the file to include information relating to planning consents or conditions, certificates issued at practical completion, discharge licences into watercourses or other information that was available at the time and is equally useful to subsequent purchasers of the property. The regulations also fail to address the requirements of those involved in the day-to-day management of premises – facilities, premises and building services managers and managing agents – and in practice the material presented to them is of little practical use.
The information they would need to manage and maintain assets requires a completely different approach: a live asset register would let them monitor plant, equipment and building performance, identify potential problems and keep operating parameters at optimum levels.
In modern commercial premises, building management systems have been in use for many years and provide a more practical approach to storing and maintaining information relating to their successful functioning. Any inspections, including statutory inspections, maintenance routines and other relevant information, can be logged on the system. This information is what needs to be handed over to any subsequent occupier.
The file format
In most cases, a single hard copy of the file will be provided together with as-built or record drawings, as well as miscellaneous information including manuals, operating instructions and other details that might be considered useful but are not necessarily required under the CDM Regulations. The amount of information provided varies enormously, depending on the size and scope of the project.
Over the years, information has been provided on floppy disks, CDs and DVDs but even over the past 20 years, software,operating systems and hardware have moved on and the original technology has been rendered redundant. Going back even further, a lot of useful information that was transferred from paper on to microfiche is now virtually irretrievable.
In modern commercial premises, building management systems have been in use for many years and provide a more practical approach to storing and maintaining information relating to their successful functioning
These rapid changes in technology do raise concerns about the future availability of the information and this has probably partly driven the proposal for a central depository for the health and safety file, to overcome some of the problems currently encountered during the conveyancing process. These proposals originated with conveyancers but have since been taken up by the Construction Industry Council (CIC).
Where a structure or building remains in the ownership of the person or organisation who originally commissioned the construction project, they have an ongoing requirement to keep the file and make it available when future works are commissioned.
Where a client disposes of their interest in the premises then they must pass on the file as required under CDM Regulation 4(7) of 2015, which states: 'If a client disposes of the client’s interest in the structure, the client complies with the duty in paragraph (5)(b)(iii) by providing the health and safety file to the person who acquires the client’s interest in the structure and ensuring that person is aware of the nature and purpose of the file.'
However, once the initial disposal of the property has taken place, the subsequent owners are under no obligation to retain the file; although, if they subsequently commission work, they should be able to provide any necessary information relating to the structure.
The proposals currently under discussion by the CIC are for files to be lodged with the Land Registry. For lawyers involved in the conveyancing of property this may appear to be the logical solution to the problems they have locating files when properties are being transferred into new ownership.
Yet although this may appear to be a practical approach from their perspective, there are 2 major hurdles to be overcome. First, the current set-up for registration of property only allows a basic approach to the maintenance of land registration details. The sheer volume of information provided with some files would undoubtedly overwhelm the current system.
Second, the inconsistency in approach of those producing the file would exacerbate these problems and, as mentioned earlier, the progress of technology would render information inaccessible in the future.
Building control role
A more practical approach, if the proposals are to be progressed, would be for local authority building control staff to take on the role of providing a central depository for the health and safety file. It would still remain the responsibility of CDM duty holders to update the file information, as and when further works are undertaken.
The Building Regulations already require applicants to deposit a set of drawings with the relevant local authority and the information contained on these deposited drawings will include most of the details required. The requirements of the Building Regulations do come very much into the design process and should be integrated with CDM by designers when thinking through their design.
It would therefore be a simple step for designers to include additional information relating to health and safety that might be required 'relating to the project which is likely to be needed during any subsequent project to ensure the health and safety of any person', as the CDM Regulations 2015 stipulate.
A more practical approach, if the proposals are to be progressed, would be for local authority building control staff to take on the role of providing a central depository for the health and safety file
The Royal Institute of British Architects is already advocating the use of symbols and notes on drawings to draw the attention of other designers and contractors to information about health and safety issues. This is a simple concept that could be developed further and may provide a practical solution to the problems faced by lawyers involved with property transactions.
Various local authorities already have to maintain information relating to houses in multiple occupation and food outlets – including restaurants, cafés and public houses – and they can provide a resource for depositing file information.
There are obvious cost implications in them taking on this additional role but, in many cases, the facilities to do so are already in place, or could be easily adapted to provide the service without too much strain on resources. With the advent of the government Planning Portal, local authorities are well placed to take on this role, and it would even create additional revenue streams.
If these proposals are to be taken forward – and this is not a foregone conclusion – then this would appear to be the logical outcome.
Tony Baker is a health and safety consultant at A & T Consultants