Is an asbestos survey a legal requirement?

It might have now been more than two decades – a generation – since the UK imposed a complete ban on asbestos in 1999, but the legacy of the naturally occurring, carcinogenic material remains impossible to ignore.

There are quite a few reasons for that. Although asbestos is no longer used in the industries – such as shipbuilding and construction – that it was heavily used in for much of the 20th century, this does not mean the substance no longer poses a risk to health.

That is because, even to this day, many buildings up and down the UK still contain asbestos. The formerly extensive use of asbestos in the building trade means that in many properties built prior to 2000, the material can still be present in products such as lagging, textured coatings, sprayed coatings, and insulating board.

This, in turn, means there is a need to be aware of these asbestos-containing materials (ACMs), and to record and manage them, to help protect the health of these buildings’ users and occupants. So, an asbestos survey may be necessary in buildings that you own or manage.  

But is asbestos surveying a legal requirement for the building you are responsible for? To answer this question, it is necessary to know a bit more about the regulations surrounding asbestos.

What regulations govern asbestos?

Any discussion around the regulatory requirements for asbestos in the UK must begin with the Control of Asbestos Regulations 2012, or CAR 2012. Although – as the name of the regulations indicates – CAR 2012 only came into force in 2012, they barely differ in practice from asbestos regulations previously long in place in the UK.

Regulation 4 is an especially crucial element of these regulations from the point of view of those considering whether they need to arrange for an asbestos survey in their buildings. It is this regulation that sets out the “duty to manage” asbestos for whoever is classed as the “dutyholder” for the given building.

Is an asbestos survey mandatory?

You might have noticed that we haven’t so far directly addressed the question of whether it is mandatory to carry out an asbestos survey in a building for which you are responsible.

The fundamental difficulty in answering this question is that it depends on the circumstances of the particular property. The law doesn’t explicitly state that the dutyholder for a given property needs to have an asbestos survey carried out in it – so, you might conclude that from a purely legal standpoint, it isn’t mandatory.

However, what CAR 2012 does make clear, is that the dutyholder for a given non-domestic premises must take reasonable steps to ascertain whether there are ACMs in the premises – and the location, condition, and amount of those materials.

Alongside this, CAR 2012 requires that the dutyholder presumes materials contain asbestos, unless there is strong evidence that they do not.

It is often extremely difficult to gather the above information in a safe and responsible way, without arranging to have an asbestos survey carried out. So, an asbestos survey may be essentially mandatory for you as a dutyholder, if you are to achieve compliance with your obligations under CAR 2012.  

What are the legal requirements for an asbestos survey?

Below, we have taken a closer look at the legal requirements in relation to asbestos surveys, and what other obligations CAR 2012 will impose on you as a dutyholder.

What is a “suitable and sufficient assessment”?

CAR 2012 makes clear that the dutyholder for a given non-domestic premises is required to carry out a “suitable and sufficient assessment” to determine whether asbestos is present there. The dutyholder must also undertake such an assessment prior to doing any building, maintenance, demolition or other work that is liable to cause disturbance to asbestos.

The Approved Code of Practice (ACOP) sets out that “everything that can reasonably be done must be done” to ascertain whether there is any asbestos on the site.

The Approved Code of Practice further states: “All documentary information that can be obtained about the premises must be systematically checked and as thorough an inspection, as is reasonably accessible, of the premises both inside and outside must be carried out.”

In addition to this, the Approved Code of Practice says that the thorough inspection of the given site “will usually take the form of a survey.” 

When is an asbestos survey not required?

There are two clear circumstances in which an asbestos survey would not generally be required for the given property: the building was constructed after 2000, or the building plans and a thorough inspection make clear that no asbestos is present.

If either of the above is true, this would serve as very strong evidence that there is no asbestos on the site. That, in turn, would not leave the dutyholder having to take any further action other than to record why the evidence indicates no asbestos is present in the premises.

Does the duty apply to domestic premises?

Regulation 4 of CAR 2012 applies to non-domestic premises, although this does not mean the regulation can never apply in any way to a domestic building.

However, the only parts of a domestic premises to which the duty would apply would be the common parts of a multi-occupancy domestic building.

Examples of such multi-occupancy premises include purpose-built flats or houses converted into flats. The common parts of such buildings can be understood to include such spaces as foyers, corridors, staircases, gardens, yards, roof spaces, and lifts and lift shafts.

Who are ‘dutyholders’ and what are the requirements?

A “dutyholder” is someone who has the “duty to manage asbestos” under CAR 2012. This person is typically the individual who owns the given non-domestic premises, or the person or organisation with clear responsibility for maintaining or repairing the premises.

If you are a dutyholder, you will be expected to do the following:

• Take reasonable steps to discover whether there are asbestos containing-materials on the premises – and if so, details about the location, amount, and condition of those materials
• Presume materials contain asbestos unless there is strong evidence of this not being the case
• Create and maintain an up-to-date record of the location and condition of the ACMs, or materials that are presumed to contain asbestos
• Assess the risk of anyone being exposed to asbestos fibres from the identified materials
• Assemble a plan that outlines in detail what will be done to manage the risks from these materials
• Take the required steps to put the plan into action
• Periodically review and monitor the plan and the arrangements you have to act on that plan, so that the plan stays relevant and up to date
• Provide details about the location and condition of the materials to anyone who is liable to work on the materials or cause disturbance to them.

What are the penalties for not following the law in relation to asbestos?

If you are a dutyholder and you do not have a plan in place for managing asbestos, you could be at risk of being hit with a fine of up to £20,000 or being imprisoned for up to six months. A serious breach of the regulations could lead to an unlimited fine and/or two years imprisonment.

Hopefully, our guide will have helped make clear to you the circumstances in which arranging an asbestos survey for your premises would be a legal requirement. If you have any further queries about asbestos management or the wide-ranging services our experts can provide – including asbestos surveying – please do not hesitate to email us or call our team today.