The regulations came into force on 12 November 2002. Regulation 4, which governs the duty to manage asbestos in non-domestic premises and which contains extensive new obligations, will come into force on 21 May 2004. It is estimated that 1.5 million non-residential premises in the UK may be affected by Regulation 4. Yours may be one of them.
Regulation 4 creates the concept of the "duty holder". This is a broadly defined term that encompasses every person who has any obligation in relation to the maintenance or repair of non-domestic premises or even any means of access to or exit from such premises or any control over any part of any non-domestic premises. In fact, even if you do not fall within this definition, you can still be affected: every person is obliged to co-operate with the duty holder in so far as is necessary to enable them to comply with their duties under the regulations.
If you are a duty holder, you have to ensure that a "suitable and sufficient assessment" is made as to whether there is likely to be asbestos in the premises. "Asbestos" is very widely defined. It covers any sort of asbestos.
The obligation is to assess and manage the risk of asbestos contamination. Asbestos cement products have a lower risk, particularly if not required to be removed or disturbed, than spray application or hand-mixed asbestos.
A written plan has to be prepared, identifying the location of the asbestos and the intended measures for managing it. Information regarding the location and condition of the asbestos must be relayed to anyone who may disturb the material (including emergency services). Obviously, having this information available could be a considerable improvement in safety, particularly for construction workers involved in demolition and refurbishment work.
Where an assessment or a later review shows the presence of asbestos that cannot safely be left in place, the duty holder is obliged to ensure that it is removed.
The Health and Safety Commission expects the costs of complying with the regulations to vary, averaging £4000 per site. Good news for specialist asbestos contractors.
Is there any other good news? In fact there is: given that the Health and Safety Executive is encouraging organisations to take a pro-active approach, the cost of disposal might be reduced through tax relief. Enhanced Corporation Tax relief is available for the cost of cleaning land acquired in a contaminated state. Under the Finance Act 2001, up to 150% tax relief may be available for companies that incur expenditure on land remediation, including asbestos removal from existing buildings. Relief can be claimed on expenditure incurred from May 2001, but you cannot claim relief if you were the original polluter of the land. You must also be a UK registered company. The relief arises on the sale of an asset, but an investor or owner/occupier can claim it in the year of expenditure.
Quite apart from the significant danger to health and safety, there are other potential costs. These could include compensation claims, prosecution, heavy fines and imprisonment, adverse publicity and withdrawal or refusal of insurance cover. It is possible that these effects could be felt not only by property owners and managers but also by developers, architects and contractors. Inevitably, also, the value of a property will be reduced and its maintenance costs increased if it is known that it contains asbestos in breach of the regulations.
Alright, it's still not up there with the football results and Big Brother, but the subject of asbestos might be a little more interesting than you might at first imagine. Certainly, ignoring the regulations and their requirements could be extremely costly.
Simon Lewis is a partner in solicitor Dickinson Dees in Newcastle upon Tyne.