Dust-buster

On 21 May 2004, the “duty to manage asbestos” imposed by the Control of Asbestos at Work Regulations 2002 will begin to bite for the first time.

This will affect landlords, tenants and owner/occupiers of commercial premises. Failure to comply may lead to severe penalties and there is potential for personal liability upon managers and directors for breach.

Despite a long lead-in time and publicity by the Health & Safety Executive (HSE), surveys suggest that large numbers of those who should be complying with the new duty have yet to hear of it, let alone embark on the preparatory work needed to achieve compliance in May.

The Government policy that led to the new regulations is based on the belief that undisturbed asbestos in good condition does not pose a significant risk. The danger comes when it is damaged or disturbed, because millions of tiny fibres are then released into the air where they can be inhaled.

The regulations are not, therefore, aimed at wholesale asbestos removal. Their aim is to ensure that the tonnes of asbestos currently in UK buildings are maintained in good condition and not accidentally disturbed.

Locate, presume, record, plan and inform
The new obligations can be broken down into a number of steps:

– Locate asbestos-containing materials and determine their condition by conducting a survey or inspection. The obligation is to take such steps as are reasonable in the circumstances to carry out an assessment as to whether asbestos is, or is liable to be, present in premises. This is not an absolute obligation to take all steps – only reasonable steps need be taken. Therefore, if an area of a building is particularly difficult to reach (some roofs, for example), an inspection may not be required of that area. However, in respect of areas where inspection has not been undertaken, an assumption will need to be made that the area does harbour asbestos, unless there is strong evidence to the contrary.

– Presume materials contain asbestos (and treat them accordingly) unless there is strong evidence to the contrary. The regulations do not allow a person to decide not to carry out an assessment at all and simply to assume asbestos is present. However, where a material is found that might contain asbestos, then the material must be assumed to contain asbestos – unless further tests are carried out.

– Create and maintain up-to-date records of the location and condition of asbestos or presumed asbestos. There is no prescribed form as to how these records must be kept. The records can be paper-based or electronic. Some services exist enabling the records to be available through the web – a www link can then be sent to anyone who needs access to the data.

– Plan how to manage the asbestos in the future. The plan must provide for monitoring and maintaining asbestos, ensuring that dangerous asbestos is removed and ensuring that anyone who may disturb the asbestos has access to the relevant information.

– Ensure that anyone who needs to know where asbestos is located is given that information. This is most likely to be people carrying out building and maintenance works. It would include anyone using power tools in an area where asbestos is present.

Non-domestic premises
The duties apply to all “non-domestic premises”. In its simplest form, “domestic premises” are defined as premises occupied as a private dwelling. Non-domestic premises are, effectively, everything else. The definition is wide enough to catch the common parts in a block of flats and will obviously cover offices, factories and shops.

‘A’ Day
The duty to manage will come into force on 21 May 2004. By that date everyone who is a “dutyholder” under the regulations should be in full compliance. This means that by that date they should have completed their asbestos survey and adopted their management plan.

The ‘dutyholder’
One of the most complex parts of the new regime is that of determining who has the obligation to comply – the “dutyholder”.

The regulations say that the dutyholder is every person who, by a contract or tenancy, has obligations relating to maintenance and repair of the relevant premises. If there are no contracts or tenancies (for example in the case of owner/occupiers), then the dutyholders will be the people who have control over the premises.

A simple example would be a building that is wholly leased by a landlord to one tenant under a full repairing lease. The dutyholder will be the tenant, because it is the tenant who is, under the terms of its lease, responsible for the maintenance and repair of the building.

In multi-occupied buildings, identifying who the dutyholders are may become very complex indeed. It is likely that different dutyholders will exist in relation to different parts of the building.

Duty to assist
In addition to the “duty to manage”, which is imposed on ‘dutyholders’, the new regulations impose a “duty to assist” and cooperate with a dutyholder to enable them to comply with their obligations.

Therefore, if a tenant is a dutyholder but the landlord has information about the presence of asbestos in the building, for example, there will be a positive obligation on the landlord to make that information available.

Penalties
Failure to comply with the regulations is an offence that may be prosecuted via the Magistrates Court or, on indictment, via the Crown Court. It will be the HSE that prosecutes and decides which route to take.

If the offence is committed by a company and the HSE successfully proves that it was with the “consent or connivance” of a senior executive, the latter may find themself at the end of a personal prosecution.

Conclusion
Asbestos-related illnesses currently account for around 3,000 deaths each year in the UK alone. Now that its dangers are known, the biggest risks are posed to those who accidentally disturb asbestos while carrying out building works or installing new cables.

The new duty will undoubtedly require significant expenditure within the property industry to achieve compliance. However, in view of the death toll, many feel that the Government’s reaction is both proportionate and essential. The difficulty seems to be in communicating with those in the sector to ensure that they know these duties are coming into force. The HSE may find that easier after one or two high-profile prosecutions for non-compliance.

Neil Toner is a partner in the commercial property department at Lewis Silkin