Asbestos is still prevalent in all but the newest of buildings, given that blue and brown asbestos was only banned in 1985 and white asbestos in 1999. The regulations will formalise the Health and Safety Executive's efforts to minimise workers' exposure to asbestos and to reduce the number of asbestos-related deaths. People are still being exposed unnecessarily to asbestos when working within or on the fabric of a building, and the regulations are aimed at protecting these workers by providing them with the information they need to enable them to plan their work more safely.
The 2002 regulations set out an express duty to "manage the risk" from asbestos-containing building materials. Regulation 4 in particular applies to anybody who has an obligation to maintain and repair all or part of a property or who controls the means of access to a property. This regulation also applies to those who have important information about asbestos in a property, and requires them to co-operate with others. For example, landlords must pass on relevant information to tenants and tenants must co-operate by allowing managing agents access to inspect the property.
There may be more than one person on whom the duty rests at any one time, so that in the case of a commercial property with multiple occupation the landlord and the tenants all have duties under the regulations.
Anyone who has a duty under regulation 4 must do the following:
- Establish whether the property contains asbestos by considering the age of the property, reviewing any building plans and speaking to anyone who may already have useful information about the property such as a surveyor, architect or contractor
- Keep a written record of the location, the quantity and the condition of asbestos that has been found in the property
- Assess the risk of exposure to any individual by determining the condition and amount of asbestos
- Prepare a written management plan, which identifies the affected parts of the property, determines the risk and records the steps that need to be taken to manage that risk. The management plan must be kept up-to-date and reviewed at regular intervals.
It is important to remember that the regulations impose a legal duty to manage, not remove, asbestos in a property. Asbestos which is in good condition and is unlikely to be disturbed or damaged should not be removed unnecessarily, as this could be costly and more dangerous than simply controlling and containing it.
The regulations are expected to be vigorously enforced by HSE inspectors who will carry out regular visits and conduct checks on the management plans. Failure to comply will result in a criminal offence and if tried in the Crown Court, an unlimited fine and imprisonment for up to two years. If a death results from work involving asbestos then manslaughter charges may be brought.
As I said, the date by which you should have implemented these steps is 21 May 2004, so anybody working on the fabric of a building after then will be able to ask for information about the presence of asbestos and should expect to be given accurate information about its location and state, which will enable them to plan their work more efficiently and safely.
The impact of these regulations should bring home to those who manage or control business properties that they must protect the health and safety of their visitors and their employees through proper and informed risk management of asbestos, or they will be faced with the consequences of dealing with a criminal offence.
Tanuja Sellahewa is an assistant solicitor in the commercial property team at Laytons in Guildford.