Recent news that the Health & Safety Executive (“HSE”) has launched a Consultation on part of the Control of Asbestos Regulations 2012 made us think that a review of the current position, and a brief update on this consultation would be of interest to our readers.
What is asbestos, and where does it come from?
Asbestos is a fibrous mineral that was widely used in construction. Once the fibres are extracted, spun and woven, they are strong and flexible and are heat and fire-resistant. Asbestos was used in many building materials – for example, in insulation, in roofing, and in floor and ceiling tiles and panelling. It is now known to be a serious health hazard. If disturbed, asbestos fibres can become airborne, and when inhaled can cause fatal lung diseases such as asbestosis, mesothelioma, and lung cancer. All these diseases can take many years to become apparent, and in fact, asbestos is the greatest cause of work-related deaths in Great Britain. According to the HSE, approximately 5,000 people die per annum from asbestos-related diseases in Great Britain every year.
What are the regulations around using asbestos?
Regulations to control exposure to asbestos at work were introduced many years ago. It is now illegal to use any form of asbestos in any building or refurbishment works, and in fact, the use of asbestos in new buildings was banned in 1999.
However, Great Britain was historically a very high user and importer of asbestos and so has a serious and ongoing asbestos legacy – many buildings still have significant amounts of asbestos in them, and this poses a significant health risk to everyone who works in such buildings or has any involvement in building maintenance for such buildings.
The key piece of legislation here is the Control of Asbestos Regulations 2012. Failure to comply is a criminal offence, penalties include imprisonment (for up to two years) and/or unlimited fines. The HSE has an active enforcement programme. As well as criminal penalties, there are also likely to be civil claims leading to awards of damages for negligence. Responsibility for the management of asbestos is therefore not something to be ignored.
The aim of the regulations generally is to prevent exposure to asbestos, or where this is not possible, to ensure exposure is reduced to the lowest reasonably practicable level.
What does this mean for commercial properties and their landlords?
In relation to commercial properties, the key parts of the regulations require the dutyholder to do the following:
- Carry out an asbestos survey to determine whether asbestos or asbestos-containing materials (“ACMs”) are present or likely to be present in the property. Different types of survey are needed depending on what is required – these are management, refurbishment or demolition surveys. All require inspection and sampling of test samples obtained from the property.
Refurbishment and demolition surveys are more intrusive. The HSE recommends that a suitably qualified asbestos surveyor should carry out the asbestos survey, and surveys must be reviewed and updated regularly. The dutyholder must be satisfied that the person carrying out the survey is competent to do so.
The asbestos survey generates the information needed by dutyholders to provide accurate information on ACMs, their location and condition, and enables the dutyholder to prepare a register of ACMs at the property and an asbestos management plan for the property. - Manage any asbestos and ACMs that are or may be present at the property – this includes:
- Assessing the risk
- Preparing a written plan to manage the risk and reviewing and updating it regularly
- Implementing the written plan - this includes monitoring asbestos and ACMs, encapsulating or removing them if necessary, and providing information about them to any person likely to disturb them (such as maintenance contractors) and the emergency services
- If demolition or major refurbishment is proposed, then note that there is a legal requirement for all asbestos and ACMs to be removed, as far as reasonably practicable, before any major refurbishment or demolition is commenced. These works have to be carried out by appropriately licensed contractors in accordance with the regulations
- Recording what has been done.
In relation to commercial properties, the “dutyholder” may be the freeholder or the tenant, or both, depending on the nature of the building. A tenant who takes on the lease of a whole building, with responsibility for repairing it, is likely to be the asbestos dutyholder, and further, obligations in the lease on the tenant to comply with legislation are also likely to make the tenant responsible for dealing with any asbestos and ACMs at the property.
On any lease transaction, a well-advised tenant of a commercial property will therefore always insist on up-to-date asbestos surveys and management plans being handed over prior to completion, as once the transaction completes, that tenant as dutyholder will take over responsibility for any asbestos and ACMs at the property, and all the costs associated with this (which may be substantial).
The same applies to any buyer of a freehold property – buyers should not complete any purchase without obtaining an up-to-date asbestos survey so that they are aware of the potential liabilities associated with any asbestos and ACMs at the property before they buy.
Do the regulations apply to anyone else?
There are separate obligations placed on other types of dutyholders, such as employers, building and maintenance contractors, and licenced asbestos removal contractors, which are not the subject of this note.
The consultation proposals launched by the HSE referred to above involve various discussion points, the most relevant for owners and occupiers of commercial properties being whether there should be a legal requirement for all providers of asbestos surveys to be officially accredited. In 2022, the Work & Pensions Committee recommended (among other matters) that HSE should make it mandatory for people conducting asbestos surveys to be accredited by a recognised accreditation body.
Concerns were raised about the quality of surveys and how this may leave dutyholders not fully aware of the risks around asbestos at their properties. There was a suggestion that a national standard for reports would assist the dutyholder, the asbestos removal industry and the regulator.
HSE is now consulting on this. Its preferred option is to continue to strongly recommend (rather than require) that accredited surveyors are used, as it states it does not currently have enough evidence to suggest that making this a requirement (with all its associated costs for providers) will address any issues arising from the quality of asbestos surveys. The consultation closes in January 2026, following which the HSE will review responses by interested parties and report back on its proposed next steps.
What actions do you need to take now if you own or occupy a commercial property?
In the meantime, anyone who owns or occupies commercial property, or who is looking to do so, should ensure that they are clear as to whether they are an asbestos dutyholder or not – and if they are, should ensure that they are acting in compliance with the Regulations.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
