Release date: Nov 2008

Although it has been several years since the requirement to control asbestos in non-domestic premises came into force, we continue to come across many instances where there is a breach of the statutory obligations. The requirements are now covered by the Control of Asbestos Regulations 2006 which came into force on 13th November 2006 and which replace earlier Regulations dealing with asbestos.

The Regulations prohibit the supply and use of all forms of asbestos and also prohibit the second use of asbestos products. Existing asbestos containing materials ("ACMs") can continue to be used provided they are in a good condition and provided they are monitored regularly and managed. This article is designed to focus primarily upon the Regulations as they apply to the duty to manage existing asbestos in commercial premises.

The Duty to Manage is contained in Regulation 4 of the Regulations.

It requires the dutyholder to:

• take reasonable steps to find out if there are any ACMs in their premises - if so how much, where it is located and what condition it is in;
• presume materials contain asbestos unless there is strong evidence that they do not
• make, and keep up-to-date, a record of the location and condition of the ACM's or any materials which are presumed to contain asbestos
• assess the risk of anyone being exposed to fibres from the materials identified
• prepare a plan that sets out in detail how the risks from these materials will be managed
• take the necessary steps to put the plan into action and to periodically review and monitor the plan and the arrangements to act on it
• provide information on the location and condition of the materials to anyone who is likely to work on or disturb them

It should be noted that the duty to manage is not necessarily a duty to remove.

The dutyholder will usually be the person or organisation who is responsible for the repair or maintenance of the premises. This will include a tenant who is liable under a lease. The extent of the duty will depend upon the nature of any agreement.

For example, in a property occupied by one tenant, the Landlord and Tenant may agree to share responsibility. This is however unusual as the Tenant is likely to be fully and solely responsible.

In situations where the lease does not specify who is responsible then whoever has control of the premises will be liable.

In the event that asbestos is to be removed then generally removal can only be undertaken by a licensed contractor. There are some exemptions to this but specialist advice should be taken.

Breaching the Regulations will be a criminal offence and could lead to a fine of up to £20,000 and/or up to six months imprisonment per offence in the Magistrates Court or an unlimited fine and/or up to 2 years imprisonment in the Crown Court.

Further guidance can be found at the Health and Safety Executive website at www.hse.gov.uk.

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