Asbestos - Take No Chances
In September 2011, Marks & Spencer Plc was fined £1 million for failure to protect staff and members of the public while removing asbestos during refurbishment works. The result shows that courts are clearly prepared to hold property owners accountable for breaches of health and safety and the level of the fine is an indication of the seriousness attributed to obligations relating to asbestos.
The Control of Asbestos Regulations 2006 impose various obligations on the ‘duty holder’. In brief, the ‘duty holder’ includes anyone who has an obligation relating to the repair or maintenance and/or control of non-domestic premises or access to the premises.
The definition is far reaching and means that it can fall on multiple parties at the same time i.e. both the landlord and their tenant.
The Regulations require the duty holder to:
• Assess the premises to find out if there is, or is liable to be, asbestos containing material (either by visual assessment or full survey as appropriate)
• Review the initial assessment to see if there is any reason to suspect that it no longer applies, or if there has been a significant change relating to the premises
• Identify the level of risk posed from asbestos-containing material
• Prepare a written plan highlighting the areas of the premises that contain asbestos and setting out how these will be managed
• If necessary arrange for the asbestos to be removed or contained and make sure that people working in the premises are informed about the asbestos
The duty holder should keep written records of both the assessment and management plan. There must also be ongoing reviews and monitoring of the asbestos at the premises so that any appropriate action can be taken.
It is common that a lease will include specific repairing obligations which result in both landlord and tenant being duty holders. In determining how the burden of compliance is to be apportioned between the parties, courts will consider the nature and extent of the maintenance or repairing obligations.
In any event, it would be prudent for both parties to carry out their own risk assessments and share the information with each other – in fact the Regulations include an active obligation that ‘every person’ must cooperate with the duty holder.
There are major consequences for non-compliance and the only defence that will be taken in to account is to show that the duty holder has taken all reasonable precautions and exercised all due diligence.
If as part of a visual assessment any asbestos is identified or if there is any doubt, then it would be safer to commission an Asbestos Management Plan to be prepared by a suitably qualified assessor. The risks posed from asbestos, and consequences of non-compliance with the Regulations, are too serious for any chances to be taken.
If you have any queries or concerns then please contact the Commercial Property Team on 01392 666777. More information is available by logging on at www.stones-solicitors.co.uk.