On 21 May 2004, an important new duty relating to the identification and management of asbestos in "nondomestic" premises came into force. It has important implications for property owners, occupiers and managing agents.

Although strict UK asbestos controls made the use of asbestos in buildings illegal some time ago, it is estimated that asbestos still remains in half a million buildings in the UK due to its widespread lawful use in the construction industry in the 1950s, 60s and 70s. No law to date has required all asbestos contained within older buildings to be identified and made safe. When asbestos in these buildings is damaged, there is a risk to human health because of the possibility of airborne fibres. Those who work in the building and maintenance trades are particularly at risk. If they do not know whether or where asbestos is present in a building structure, they risk making fibres airborne as they carry out their work.

The Control of Asbestos at Work Regulations 2002 were introduced to protect such workers. They create a new duty to identify and manage asbestos in "nondomestic" premises which came into force on 21 May 2004. It is estimated that the new duty, together with the other obligations set out in these Regulations, will save 4,700 lives at a cost to industry over a 50 year period estimated at £1.5 billion.

Landlords, lessees, and managing agents could all be subject to the new duty. The duty is imposed on every person who has, by virtue of a contract or tenancy, an obligation of any extent to maintain or repair non-domestic premises or any of such premises’ means of access or egress. In relation to any part of non-domestic premises where there is no such contract or tenancy, the duty is imposed on every person who has, to any extent, control of that part of those non-domestic premises or such premises’ means of access or egress.

The requirements of the duty are potentially onerous. In short, persons subject to the duty ("dutyholders") are required to:

  • carry out a "suitable and sufficient" assessment as to whether or not asbestos is, or is liable to be, present in the premises and keep the assessment under review. The assessment must assume that building materials contain asbestos unless there is strong evidence that they do not. The assessment requires a high level of detail and must be recorded; and
  • carry out a risk assessment where asbestos is or is liable to be present, and prepare, implement and keep under review a written plan for managing any identified risk. The plan must provide details of monitoring, maintenance and, if necessary, removal. The plan must also include adequate measures for ensuring that information about the location of any asbestos is provided to every person who may disturb it and is made available to the emergency services.

In conclusion, the new duty has important implications for surveyors, especially those involved in property management:

  • Surveyors could be one of a number of dutyholders in relation to any property that they manage and need to make sure that it is clearly understood what their role is in ensuring that the duty is satisfied.
  • Discovery of asbestos in an unexpected location when carrying out an assessment could lead to considerable disruption and cost and possibly even third party claims for compensation.
  • Failure to satisfy the duty could expose dutyholders to liability for asbestos-related diseases contracted in the future.
  • The implications of the new duty will be important considerations in any future lease, sale or purchase of non-domestic premises.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.