Testing for asbestos

Moray Thomson, senior solicitor in the environmental and planning law group of MacRoberts Solicitors, reports on changing regulations and their implications for business

The use of asbestos in buildings may have been outlawed for several years, but the repercussions from this deadly substance still persist, as
approximately 3,000 people die each year from asbestos related diseases. Asbestos was used extensively as a building material in the UK from the 1950s to the mid 1980s and is present in nearly 4.5m buildings.

New legislation gives owners of all non-domestic premises increased responsibilities to control the risks from asbestos. Under the Control of Asbestos at Work Regulations 2002, which came into force on 21 November 2002, all asbestos-containing materials must be identified and any risk of exposure to staff or contractors must be assessed. A written asbestos management plan must be prepared describing every step required to manage and monitor the materials and, where necessary, how their removal will be arranged.

Other duties also apply relating to health records, washing facilities and air monitoring. Protective measures must also be taken where there is an exposure risk.

Air monitoring duty

One of the most significant duties imposed on employers relates to the carrying out of air monitoring. Where an employee’s exposure is likely to exceed the “action level” (defined in terms of specified fibre hours per millilitre of air depending on the form of asbestos), a measurement of fibres in the air must be carried out at regular intervals. This measurement of the concentration of fibres in the air and the subsequent analysis must be carried out in compliance with the International Standard ISO17025.

Owners and tenants of all non-domestic properties are advised to assess their obligations under the regulations and to take early action to ensure compliance. Depending on the age, type and size of a building, the person responsible for the premises must ascertain whether asbestos is present through a professional survey. If asbestos is found and poses an immediate risk the removal costs could be high, and may well cause disruption to any business on the premises.

Non-compliance with the law, which will be implemented from 21 May 2004, is of course a criminal offence. But there may also be other financial implications as the market value of buildings containing asbestos may fall, or the premises may prove difficult to sell at a future date.

Responsibility to comply with the regulations falls upon all owner-occupiers, but where a property is leased, liability may differ. Normally, liability will be transferred to the tenants of a property by virtue of the terms of the lease agreement. For example, in a typical multi-let building the landlord is liable to carry out all maintenance while the tenant is only liable for the internal finishes. However, this doesn’t preclude the landlord from the cost of compliance and this can normally be recovered through a service charge.

In some cases, responsibility for a building will be shared between landlord and tenant. In such cases the contribution each must make depends on the maintenance and repair agreement arrived at between the two parties.

All tenants who believe it is their landlord’s duty to comply with the regulations should obtain an assurance that this is in fact the case and that the landlord will be carrying out his or her duty under the new law. If, however, you are a landlord, you should take immediate measures to ensure that the liability for compliance is clearly designated within the lease agreement as being the responsibility of the tenant.

Acquisition of property

Anyone in the process of acquiring a property would be advised to ask the seller to provide the requisite asbestos information as part of pre-acquisition enquiries. This includes establishing whether the property has a current asbestos register and if asbestos is present. The future liability for maintenance or removal should be clearly defined. If there is no data, it would be worth having the property surveyed to properly assess any liability that may arise.

Finally, given the potential shortage of surveyors, the advice is to book early to avoid disappointment. Come next May when the regulations are enacted, surveyors will be in great demand and property owners may wish they had acted sooner rather than later to keep their houses in order.

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