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Author: Tanaz Nowrouzzadeh
Asbestos has historically been used in a broad range of industries, including the construction of buildings. We now know that asbestos carries significant health risks and in 1985 the UK banned the import and use of asbestos. Despite this ban, asbestos can still be found in many buildings and the people who are most at risk from asbestos are workers who disturb it without realising it is there and surveyors when carrying out inspections of those buildings
There is now a legal requirement to manage asbestos in all non-domestic properties under The Control of Asbestos Regulations 2012 (CAR 2012). Under these regulations a risk assessment must be carried out of the building by the relevant duty holder. Under the regulations the relevant duty holder is:
a) Every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises; or
b) In relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises.
If, therefore, the owner of property leases the whole of it to a tenant who is obliged to keep the property in repair, the primary responsibility to comply with the provisions of CAR 2012 will be the tenant. However, as the freeholder is likely to have retained the right to carry out maintenance works should the tenant fail to do so, the freeholder will remain a duty holder alongside the tenant and should ensure that the provisions of CAR 2012 have been complied with.
Advice from the Health and Safety Executive is to assume that asbestos is present and that products contain asbestos unless there is strong evidence to the contrary. The regulation requires a proportionate approach to be taken, and only requires a substantial survey where the risk warrants one. For example, it may be that with a small shop requiring little maintenance, a walk through inspection may be adequate.
Where an assessment shows that asbestos is, or is liable to be present on the premises, the duty holder must ensure that:
The written plan must specify the measures to be taken to manage the risks from the asbestos. It is not always necessary to remove asbestos or substances containing asbestos but any material left must be monitored. The written plan must be reviewed and revised at regular intervals and without delay.
Failure to comply with the requirements of the CAR 2012 is a criminal offence.
For further information on asbestos and the importance of the CAR 2012, please visit http://www.hse.gov.uk/asbestos/index.htm.
Contact a member of our Property team if you have any queries or require assistance with the CAR 2012 regulations.