Management of Asbestos in non-domestic
property
- Duty of owners and occupiers
DECEMBER 2008
Asbestos has been used in a wide range of industries and in the construction and
refurbishment of buildings from the 1940s to the 1970s. Some forms of asbestos containing
materials were still being used until 1999 when prohibited by building
control regulations. However, over time it has been revealed that exposure
to asbestos carries significant health risks. This has led to a large amount of claims
being pursued against companies, employers, property owners, occupiers and
so forth.
The Control of Asbestos Regulations 2006 (“CAR 2006”) came into force on 13
November 2006. This creates several rules in relation to managing asbestos
in properties. This article will therefore seek to focus on the asbestos-related
duties of property owners and occupiers.
Duty to manage asbestos
Regulation 4 of CAR 2006 creates a duty to manage asbestos in non-domestic
premises. This Regulation imposes an obligation on the “duty holder” to:
1. determine whether asbestos is present in a building or is likely
to be present;
2. assess the risk;
3. manage any asbestos that is or is likely to be present.
Who do the Regulations apply to?
There is a very broad definition of duty holder in the Regulations. This means that
a wide range of people could be found liable for breaching their obligations.
The Regulations apply to all owners of non-domestic property, landlords, tenants,
licensees and potentially managing agents. The Regulations even apply to freehold
owners of non-domestic property who leave their property vacant.
Where a landlord leases the whole of a property, the landlord may retain
an obligation to maintain or repair. Alternatively the primary responsibility
to repair may rest with the tenant; however the landlord should be aware that
they remain a duty holder alongside the tenant and could be held liable. It is
therefore essential for property owners and occupiers of property who have
repairing obligations to be aware of their asbestos-related duties.
Will the property be non-domestic premises?
The Regulations do not define non-domestic premises. However, it seems that
a very broad approach will be taken when deciding whether property is nondomestic
or not.
Non-domestic premises include commercial premises, industrial premises, service
premises which members of the public visit (e.g. schools, hospitals, prisons)
and even certain parts of residential premises (e.g. the common parts in a block
of flats).
Duty to assess whether asbestos is present in the premises
A property owner or occupier is under a duty to assess whether asbestos
or asbestos-containing material is, or is liable to be present in the premises.
The person making this assessment must consider the age of the premises, take
account of any building plans and ensure that inspection is made of those parts
which are reasonably accessible.
In some circumstances simply making enquiries regarding the construction
of a building may be adequate to make an assessment, for example with a recently
constructed building.
It seems that the Regulations require a proportionate response. The property owner
or occupier must take into account the size and type of building. For example,
if the property is a small shop requiring little maintenance, a walk-through
inspection may suffice.
In practice the owner/occupier should arrange for an assessment to be carried out
by a qualified surveyor. Records of this assessment must be kept.
Where asbestos is present or liable to be present
Where an assessment shows that asbestos is present or liable to be present,
the owner/occupier must determine the level of risk. A written plan of action
should also be made and kept under review. The plan should identify measures to
be taken for managing the risk.
It should be noted that the asbestos should not necessarily be removed from the
premises, as this could in fact disturb it, causing more risk. It may be more
appropriate to arrange professional sealing or encapsulating of the asbestos.
Tax relief if removal or treatment of asbestos is necessary
Companies may be able to claim a deduction in corporation tax for capital
expenditure incurred in carrying out remediation work. Much depends on why the
property was acquired (e.g. as trading stock). It seems that in order to claim the
relief, it must be proved that the asbestos needs to be removed, because it may
cause harm. If the works are not essential, land remediation relief may not be
awarded.
Conclusion- Property owners/occupiers beware!
Property owners/ occupiers have key responsibilities in relation to non-domestic
properties. It is essential that they carry out an assessment of the risk of asbestos
in order to prevent large claims landing on their doorsteps.
Purchasers of property should ask the seller for a copy of their assessment record.
It would also be advisable for them to commission their own survey, so that they can
rely on this directly. Although purchasers will not become duty holders until
completion, they should remain cautious and consider the risk of asbestos.
Landlords and tenants should be particularly cautious about the risk of asbestos. They should ask for a copy of each other’s written plan. They should also both
ensure that the other is complying with their obligations in order to avoid becoming
liable. Moreover, landlord’s who have passed the majority of the repairing
obligations in the lease to their tenant should be aware that they still remain
a duty holder and could fall on the wrong side of a claim in the future.
If a property owner/occupier has failed to comply with his obligations under CAR
2006, he faces the possibility of actions against him in the future from employees,
contractors or other users of the premises who contract asbestos-related diseases.
He also faces the risk of prosecution and could receive a fine (either unlimited
or capped at £20,000, depending upon whether the prosecution is by way of
summary judgment or indictment) and even a prison sentence.
If you would like further information on the content of this newsletter please
contact Michael Collins on 0207 404 0606 or mcollins@gdlaw.co.uk.
This is a guide for general information and interest and should not be relied upon as providing specific legal advice. |
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