JCT and the CDM Regulations

I have been contacted by a Landscape Architect who has brought to my attention an interesting point on JCT. On going through a JCT IC 2011 form of contract, the Landscape Architect had picked up an ambiguity between the CDM Regulations (“the Regulations”) and the JCT form of contract.

JCT states, taking clause 3.18.1 in the IC 2011 as an example, that the Employer shall ensure that the CDM contractor carries out all his duties and if the contractor is not the Principal Contractor the Employer shall ensure that the Principal Contractor carries out all his duties under the Regulations.

However Regulation 9 of the Regulations states that the Client takes all reasonable steps to ensure arrangements are made for managing the project to ensure the construction work carried out so far as reasonably practicable is without risk to the health and safety of any persons, etc.

It could be difficult for the Employer to make contractors carry out all their duties under the Regulations.

The party contacting me therefore has been advised to remove the mandatory obligation under JCT as it creates an excessive burden on the Employer requiring it to take steps that are not in the Regulations.

The question that arises is whether JCT imposes to high a duty on an Employer out of sync with the Regulations which needs to be addressed by removing the clause in JCT or altering it to align it with the Regulations.

What do you think?