Since the introduction of the Control of Asbestos Regulations 2006 the need to identify and manage asbestos at commercial properties has become increasingly important with landlords and occupiers being reminded of this by not only their professional advisors but also through the media.

In this article Rebecca Watkins takes a look at what should actually be done if asbestos is discovered at a property and the consequences of not taking the required steps.

Dealing with asbestos

In owning and/or occupying a property landlords and occupiers are likely to be considered the ‘duty-holder’ for the purposes of health and safety regulations. It is the duty-holder’s responsibility to take reasonable steps to assess whether asbestos is present at a property.

In the event that asbestos is found, this could either be whilst work is being carried out at a property or following an asbestos survey in compliance with the asbestos regulations, and depending on the type of asbestos present, it must either be removed or managed and a written plan maintained in accordance with statutory requirements.

Bearing in mind both the well documented health implications of exposure to asbestos and the strict penalties (referred to below) for non-compliance of these obligations, it is essential to act quickly. Whilst it may be possible to isolate the affected area and allow business to carry on as usual, if this is not possible the entire property may need to be vacated whist the asbestos is assessed and dealt with. The Health and Safety Executive (HSE) has provided guidelines as to what step should be taken in the event asbestos is uncovered. This can be found at www.hse.gov.uk/pubns/guidance/em1.pdf.

Responsibility

The HSE maintains a list of asbestos licensed contractors but recent prosecutions have made it clear that it is the duty-holder’s responsibility to assess the competence of the contractor and supervise the work being carried out on its behalf. In a recent example a landlord identified asbestos in one of its industrial units and duly appointed a licensed contractor to remove the asbestos. However, upon investigation of the work the HSE discovered that the contractor, whilst licensed to remove asbestos did not have the correct licence to remove the type of asbestos present at the property. In this case it was not the contractor, nor the landlord’s agent who had, in fact, found and invited the contractor to carry out the work, but the landlord who was held to be ultimately responsible and subsequently heavily fined. In a further reported case a local council was strongly criticised for not verifying the competence of the contractor dealing with the removal of asbestos and again fined.

Failure to comply with asbestos regulations is a criminal offence and could lead to a fine of up to £20,000 for individuals or unlimited for companies, up to 2 years imprisonment or disqualifications for directors. With this in mind it is clearly best to err on the side of caution at all stages when dealing with a discovery of asbestos.

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