Asbestos surveys - the legal position


      Asbestos surveys - the legal position

Keith Davidson ELM Law looks at the legal requirements for asbestos surveys and other obligations on dutyholders under the Control of Asbestos Regulations.

Legal requirements

There is a legal presumption that any non-domestic premises built before 2000 contain asbestos.

Under the Control of Asbestos Regulations 2012, SI 2012/632, the ‘dutyholder’ must carry out a ‘suitable and sufficient assessment’ to establish whether asbestos is present in non-domestic premises.

The ‘dutyholder’ must also carry out a ‘suitable and sufficient assessment’ before doing any building, maintenance, demolition or other work liable to disturb asbestos.

What is a ‘suitable and sufficient assessment’?

An asbestos survey will usually be required.

The Approved Code of Practice states that ‘everything that can reasonably be done must be done’ to establish whether asbestos is present

• all documentary information that can be obtained about the premises should be systematically checked

• as thorough an inspection, as is reasonably accessible, of the premises both inside and outside must be carried out – The thorough inspection “will usually take the form of a survey”

• all parts of the premises should be checked, including warehouses, yards, sheds, outbuildings, underfloor services, ducts, corridors, vertical risers, ceiling voids, storerooms, external runs of pipes

When is an asbestos survey not required?

(1) If the building was constructed after 2000

(2) If the building plans and thorough inspection confirm that no asbestos is present

If the building’s age or the information provides very strong evidence that no ACMs are present, no further action is needed other than to record why this evidence indicates there is no asbestos present’.

Does the duty apply to domestic premises?

Only common parts of multi–occupancy domestic premises, such as purpose-built flats or houses converted into flats.

The common parts of such domestic premises might include foyers, corridors, lifts and lift shafts, staircases, roof spaces, gardens, yards, outhouses and garages.

Requirements on ‘dutyholders’:

• take reasonable steps to determine the location of materials likely to contain asbestos

• presume materials to contain asbestos, unless there are good reasons not to do so

• make and maintain a written record of the location of the ACMs and presumed ACMs

• assess and monitor the condition of ACMs and presumed ACMs

• assess the risk of exposure from ACMs and presumed ACMs and prepare a written plan of the actions and measures necessary to manage the risk (ie the ‘management plan’)

• take steps to see that these actions are carried out.

Who is the dutyholder?

The dutyholder will either be

• the party in the lease or contract that has obligations for maintenance or repair; or

• if there is no contract (eg freeholder owner), any person who has to any extent control of the premises or access to the premises

Types of asbestos surveys

There are two types of asbestos surveys outlined in the HSE publication Asbestos: The survey guide HSG264 published in 2012.

This guidance replaces and expands on MDHS100: Surveying, sampling and assessment of asbestos-containing materials.

Management Survey (formerly known as a Type 1 or 2 Asbestos Survey)
This is the standard survey to assess, as far as is reasonably practicable, the presence, extent, and condition, of any suspected asbestos containing materials in the building.

The survey will take into consideration the likelihood of damage or disturbance during normal occupancy and assist in preparing an ongoing action and management plan for the building.

The survey report will often contain an asbestos register.

Refurbishment/Pre-demolition Survey (formerly known as a Type 3 Asbestos Survey)

This type of survey aims to find the asbestos behind surfaces which will be affected anyway during repairs, maintenance, alterations or demolition.

Typically, the survey criteria involves intrusive, investigative and destructive means.

Competency of asbestos surveyors

HSE Guidance strongly recommends using accredited surveyors.

‘If the dutyholder selects a surveyor who is not accredited by UKAS, they should make reasonable enquiries to make sure that they are competent by obtaining details of their qualifications, copies of their written procedures (including quality control policies) and references to other evidence of recent similar work’. (ACOP 107).

Prosecutions

In July 2013 a Nottingham property developer was given an eight-month suspended prison sentence and £100,000 in fines and costs for failing to carry out an asbestos survey and licensed removal at the former King Edward VI School on London Road, Retford.

http://www.hse.gov.uk/press/2013/rnn-em-1842013.htm

In April 2013 Britannia Hotels were fined £200,000 after construction workers and guests were put at risk of asbestos exposure at a Kent hotel. The employer failed to ensure that an asbestos survey was carried out before construction workers refurbished a wing of the hotel.

http://www.hse.gov.uk/press/2013/rnn-se-britannia.htm