Since 1987, the control of asbestos in commercial premises has been governed by regulations, which set out the responsibilities for maintenance and management of asbestos in non-domestic buildings.
The latest version is the Control of Asbestos Regulations 2012, which are due to come into force on 6 April 2012. The 2012 Regulations replace the whole of the previous 2006 Regulations, but the changes, although significant in some respects, are minor in quantitative terms.
Challenge to the 2006 Regulations
The changes are required as a consequence of a complaint made in 2006, to the effect that the UK had not correctly transposed the wording of the relevant EC Directive (2003/18/EC) – in particular Article 3(3) by failing to include in the Regulations, two expressions from Article 3(3): “non-friable” and “without deterioration of non-degraded material”.
Article 3(3) allows certain types of work with asbestos which has a lower risk, to be exempted from requirements under the Directive relating to:
- notification of work;
- medical examinations; and
- record keeping.
It was argued that the omission of the two expressions meant that the scope of the exemption in terms of the UK Regulations would be wider than they were meant to be. Non-friable asbestos is less likely to release fibres, than other types, making it less hazardous, so the omission of this qualification meant that other types of materials which might be more likely to break up and release fibres, would be included in the exemption. The exemption provisions in the 2006 Regulations included removal of materials in which the asbestos fibres are firmly linked in a matrix. However it is important that such removal could be achieved without any deterioration of non-degraded materials containing such asbestos fibres, otherwise the risk of harm could be more likely.
The UK Government accepted that the 2006 Regulations were flawed in this respect and has accordingly recast them to correct this omission and has also taken the opportunity to incorporate further regulations on the registration, evaluation, authorisation and restriction of chemicals, as well as modernising the language of the Regulations.
The duty to manage
The principal Regulation of interest to property owners and occupiers is Regulation 4: the Duty to manage. Other than modernisation of the language, Rule 4 in the 2012 Regulations is unchanged.
Regulation 4 imposes a duty on owners, occupiers and managers of non-domestic premises to carry out an audit of premises and prepare a plan of management of any asbestos located within non-domestic premises. Anyone who owns, occupies, manages, or otherwise has responsibilities for maintenance and repair of buildings that may contain asbestos (whether by virtue of some contract or tenancy, or in some other way has control of repair or maintenance), either has:
- a legal duty to manage the risk from asbestos; or
- a duty to co-operate with whoever manages that risk.
The duty to manage places an explicit duty on people in control of premises requiring them to:
- take such steps as are reasonable in all the circumstances to determine the location of materials containing or likely to contain asbestos;
- presume materials contain asbestos unless there is strong evidence that they do not;
- keep an up-to-date written record of the location of asbestos-containing materials (ACMs) and presumed ACMs;
- monitor the condition of these materials;
- determine the risk of exposure from ACMs and presumed ACMs;
- prepare and implement a written management plan to control these risks, and record and take the action necessary to ensure that any such material is, where necessary, safely removed or that it is maintained in a good state of repair; and
- provide information about the location and condition of such material to anyone likely to disturb it, and make this information available to the emergency services.
The nature of these changes to the Regulations is such that it is unlikely that the majority of property owners and occupiers will be affected in any material way.