Asbestos regulations – responsibilities and penalties

Commercial Property Partner Hannah Bambury discusses the responsibilities and penalties imposed by the Control of Asbestos Regulations 2012.

The Control of Asbestos Regulations 2012 impose duties and responsibilities on commercial property owners and occupiers in England and Wales. Asbestos materials are generally considered safe if they are stable and in good condition, and may be left alone for many years. If asbestos materials are disturbed, the fibres can become airborne and if inhaled, can cause serious diseases such as mesothelioma, lung cancer and asbestosis. The Health and Safety Executive states there are around 5,000 asbestos-related deaths in the UK per year.

If the commercial building in question has been constructed around the year 2000 or later, asbestos considerations will not be applicable as such materials have not been used in the construction of buildings for the last 20 years or so. However, if the commercial building in question was constructed pre-2000, then before any works (development or maintenance) are carried out to the building, the location and type of any asbestos which may be present in the building must be identified. In most cases, asbestos material may only be removed by a licenced contractor, although it does not always need to be removed immediately.

The duty to manage asbestos in commercial property obliges the dutyholder to manage the risk from asbestos, so as to ensure that workers, employees or visitors to the premises are not exposed to any real or potential risk. The dutyholder is anyone responsible, by virtue of a contract or tenancy, for the maintenance or repair of the building. If there is no such contract or tenancy, the person who has control over the premises will become the dutyholder. This can also apply to the shared parts of some domestic premises.

Even without any development or maintenance works in mind, dutyholders must monitor any asbestos-containing material, carry out risk assessments and ensure any information regarding he asbestos material present in the premises is passed on to those who need it and keep records of doing so. They must also have a plan in place for dealing with the discovery or disturbance of asbestos.

Non-compliance with the Asbestos Regulations is a criminal offence, currently punishable with a fine of an unlimited amount and/or imprisonment for up to two years.

Businesses and dutyholders should be aware of their duties to avoid penalties, litigation and/or injuries to workers, employees or visitors of the building.

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