A specialist survey says your premises are asbestos-free, but a little down the line the dreaded stuff is discovered. What do you do? Ian Gilmore has some suggestions.
The health risks posed by even small amounts of asbestos are now well known, and so is the obligation to manage those risks for non-domestic premises. That obligation is, in part, often discharged by surveying for the presence of asbestos, but what is less well known is that the obligation does not end there. What happens if the surveys prove defective?
Regulation 4 of the Control of Asbestos Regulations 2006 imposes a duty on those who control non-domestic premises to manage the asbestos in their buildings. Regulation 4(3) requires these “duty-holders” to carry out a suitable and sufficient assessment to determine whether asbestos is or is liable to be present. Such assessments are generally a survey by specialist contractors.
However, regulation 4(6) requires the duty-holder to review any assessment forthwith if:
- (a) there is reason to suspect that the assessment is no longer valid; or
- (b) there has been a significant change in the premises
Thus duty-holders have a continuing obligation, after an asbestos survey, to review the assessments made in it. Consider, for example, a situation where low-level maintenance work is being carried out in an area that had been surveyed and assessed as being free of asbestos. During the work asbestos is discovered. This naturally casts suspicion on the validity of the initial assessment. To comply with regulation 4(6) the validity of the original assessment should be reviewed and potentially a new survey commissioned.
A situation such as this highlights the fact that duty-holders cannot simply carry out asbestos surveys and then consider their obligations fulfilled. Indeed, such an approach could place them in breach of the regulations and liable to criminal sanction. Duty-holders should think carefully about how they are reviewing the validity of asbestos surveys and assessments already carried out. For example, is information collated and analysed to evaluate the veracity of the survey results, and would a duty-holder be aware of a situation that casts doubt on a survey’s assessment?
Another important consideration is the cost of commissioning a new survey. If the original survey covered a significant number of buildings, the costs of a new one could be high. The duty-holder may wish to consider whether there was any fault in the manner in which the original survey was conducted. Put simply, should the original survey have picked up the asbestos that has caused regulation 4(6) to come into play?
We recently acted for a client faced with a situation similar to that outlined. The client was keen to pass on the expense of a new survey to the contractor which carried out the original one and failed to identify the asbestos. The client was also not keen to expose itself to the potential costs and slow pace of High Court litigation. Fortunately, because of the nature of the contract between our client and the contractor and the scope of the work being carried out, we were able to find an alternative approach. By using the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 we were able to sidestep the more protracted aspects of traditional litigation.
The advantages of adjudication in these circumstances are clear. An adjudicator can be appointed promptly and will normally make a decision within 28 days. In this case the adjudicator concluded the original survey had not been carried out with reasonable skill and care, and ordered the original surveyor to pay the costs of a further survey.
Thus, while the continuing obligations under the regulations may throw up some unexpected and unwanted surprises, the duty-holder may not be without a prompt and effective remedy.
Building Sustainable Design
Ian Gilmore is an associate at Eversheds