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" 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. 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.

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).

Footnote

1. The corresponding term used in the Directive is "coordinator for safety and health matters at the project preparations stage".

This article 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.