Michael Stewart, Associate in our Corporate department discusses asbestos in commercial property.
It may be surprising to some that a total ban on the import of asbestos products into the UK only came into force in November 1999 (although certain types were banned in 1985). As a consequence many commercial buildings contain asbestos which is a known cancer causing substance. This can create significant liabilities for property owners, landlords and tenants particularly in relation to health issues and removal and remediation costs.
It is essential therefore that environmental liability is considered when buying or letting commercial property.
The Control of Asbestos Regulations 2012 (CAR) which replaced the previous 2006 regulations impose duties on people who have either obligations under contracts or tenancies to maintain or repair non-domestic property, or control over non-domestic premises or over access to non-domestic property.
There is also an Approved Code of Practice (ACoP) published by the HSE. Failure to comply with CAR is a criminal offence under the Health and Safety at Work etc. Act 1974 and the HSE tend to enforce asbestos regulations rigorously. Regulation 4 of CAR 2012 imposes a duty to manage asbestos risk in non-domestic premises. This involves:
– Determining whether asbestos is present in a building or is likely to be present;
– Assessing the risk; and
– Managing any asbestos that is or is likely to be present.
To manage the risks from asbestos in non-domestic premises, the duty holder is required to carry out a “suitable and sufficient” assessment to determine whether asbestos or asbestos-containing material is, or is liable to be present in the premises. In making this assessment, the duty holder must take “such steps as are reasonable in the circumstances”. The advice from the HSE is to assume that asbestos is present and that products contain asbestos unless there is strong evidence to the contrary.
Once an assessment has been carried out, there is also a duty to review the assessment without delay if either of the following applies:
– There is any reason to suspect that the assessment is no longer valid; or
– There has been a significant change in the premises to which the assessment relates.
Where an assessment shows that asbestos is, or is liable to be present on the premises, the duty holder must ensure that:
– A determination of the risk from that asbestos is undertaken;
– A written plan is prepared to identify those parts of the premises affected; and
– The measures to be taken for managing the risk are specified in the written plan.
If you need advice on liabilities for environmental matters or in relation to lease negotiations or are facing prosecution by the HSE please do not hesitate to contact us.
This blog was written by: Michael Stewart
Disclaimer: Please note that this post is intended to set out a general overview only. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.