Justin Hopkins, head of the Commercial Property team at Mogers Drewett explores and the onerous regulatory obligations around asbestos and Commercial Property
Business owners who own and or occupy commercial property need to be very aware of The Control of Asbestos Regulations 2012. Anyone who is responsible for repair and/or maintenance of commercial property should be aware of their duty (the Duty Holder) to know where it is and then to manage asbestos.
The duty to manage the risks posed by asbestos includes a requirement to take reasonable steps to find out if there are materials containing asbestos in the commercial property, and if so, where it is and what condition it is in. The Duty Holder should presume materials contain asbestos unless there is strong evidence that they do not, and they should keep up-to-date records of the location and condition of asbestos-containing materials, or materials which are presumed to contain asbestos. Furthermore, they should assess the risk of anyone being exposed to fibres from asbestos and prepare a plan that sets out in detail how the risks from these materials will be managed. The Duty Holder should take the necessary steps to put the plan into action and periodically review and monitor the plan and the arrangements to act on it, so that the plan remains relevant and up-to-date. They should also provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.
The concept of who the Duty Holder is can be complex. It will be the owner of the commercial property or the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises, for example through an explicit agreement such as a tenancy agreement or contract. Identification of the Duty Holder will be easy to establish when there is a owner occupier or single tenant, but in the case of a shared tenancy there may well be a number of Duty Holders.
Where there is no tenancy agreement or contract, or where it does not specify who has responsibility for the maintenance or repair, the duty is placed on whoever has control of the premises. Often this will be the owner.
A Duty Holder who breaches the Control of Asbestos Regulations 2012 could find themselves with an unlimited fine and or up to 2 years in prison.
Asbestos was used until the late 1990s, so for safety sake there should always be an assumption that it features in buildings built prior to 2000.
For further information or advice on this subject please call 01935 813691.