28 August 2013

What are the regulations around asbestos?

The Control of Asbestos Regulations 2012 (“Regulations”) came into force in Great Britain in April 2012. The Regulations repealed the previous legislation relating to asbestos and it is important for those who have duties under the Regulations to understand how the new rules affect them.

Asbestos is a fibrous material that occurs naturally and was used in the construction and building trade for many years, particularly in the insulation of properties. Legislation was ultimately introduced to prohibit the use of asbestos when the health implications of the material became clear.

The most recent Regulations were introduced following a ‘reasoned decision’ by the European Commission that the UK had not fully implemented the European Directive as too many lower risk work activities were exempt from duties under the UK legislation. The Government decided to issue new consolidated regulations.

Summary of Principal Requirements of Regulations for Duty-Holders

There is a duty to manage asbestos in non-domestic premises including all industrial, commercial and public buildings such as factories, warehouses, offices, shops, hospitals and schools. The duty includes ‘common’ areas of purpose built flats or houses converted into flats including foyers, corridors, lifts and lift shafts, staircases, roof spaces, gardens, yards, outhouses and garages.

A ‘duty-holder’ will be every person or organisation that has an obligation in relation to the maintenance or repair of the premises or any means of access to or from those premises, through a contract or tenancy. It is possible for the duty to rest with one person or to be shared, for example between an owner and leaseholders.

If an explicit agreement does not exist or does not specify who has responsibility under the Regulations, the duty rests with every person or organisation who has control of the premises or part of it. This will normally be the owner.

The Regulations require:

1. The ‘duty-holder’ to ensure that a suitable and sufficient assessment is carried out to find out if there are, or are likely to be present, materials containing asbestos in non domestic premises.

2. Consideration to be given to the amount of material, its location and its condition and records made and kept up to date of the location and condition of the affected materials. There must be a presumption that materials contain asbestos unless there is strong evidence to the contrary.

3. The ‘duty-holder’ to ensure that there is an assessment of the risk of persons being exposed to fibres from the materials.

4. A written plan to be prepared that sets out in detail how the risks will be managed and the measures to be taken. The material must be properly maintained or safely removed by approved contractors and information regarding the location and condition of the material must be provided to every person liable to disturb it and made available to emergency services.

5. That necessary steps be taken to put the written plan into action.

6. The ‘duty-holder’ to periodically review and monitor the plan and revise it without delay if there is reason to suspect that it is no longer valid or if there have been significant changes to the premises to which the plan relates.

Failure to comply with the Regulations is a criminal offence. A person convicted of an offence faces a fine or imprisonment. Depending on the severity of the offence the penalty for imprisonment is up to two years and an unlimited fine may be imposed.

Harrison Clark Rickerbys’ Licensing and Regulatory Department 

Our Licensing and Regulatory team has extensive experience of advising clients who operate within the property sector on health and safety investigations and prosecutions.

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About the Author
Heath Thomas, Partner, Head of Licensing & Regulatory Team and Wye Valley Office
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