The regulation 4 duty to manage asbestos, in an industrial building

Regulation 4 of the Control of Asbestos Regulations 2012 is short. It is also the compliance duty most often held by somebody who does not know they hold it. It applies to non-domestic premises, which covers almost every factory, workshop, warehouse and works building in the country built or last refurbished before the turn of the century.

Who holds it

The duty falls on whoever has an obligation, under a contract or a tenancy, for the maintenance or repair of the premises. Where no such obligation exists, it falls on whoever is in control of them. Where more than one person holds it, the regulation apportions it by “the nature and extent of the maintenance and repair obligation owed by that person”.

This is where industrial estates come unstuck. A full repairing and insuring lease moves the duty to the tenant, and the tenant is often a manufacturer who assumed the landlord dealt with the building. A landlord who retains structure and exterior keeps the duty for those parts. Both parties can hold it, for different parts of the same building, and both can be surprised to hear so. The lease answers the question. The organisation chart does not.

What the assessment has to do

A suitable and sufficient assessment of whether asbestos is present or liable to be present. The regulation sets out what that means. Take reasonable steps. Have regard to building plans, other relevant information, and the age of the premises. Inspect the parts of the premises that are reasonably accessible. Where materials cannot be identified, they are presumed to contain asbestos unless there is strong evidence otherwise. The presumption runs against you.

Two industrial habits cause most of the trouble. The first is treating the assessment as being about building fabric: roof sheets, insulation board, lagging. That forgets the plant. Gaskets, rope seals, brake and clutch linings, flue and duct insulation, and the packing around older ovens, kilns and pipework are all places asbestos was used. They are also exactly where maintenance fitters put their hands.

The second is treating the assessment as a one-off. It must be reviewed without delay if there is reason to suspect it is no longer valid, or if the premises have significantly changed. Industrial premises change constantly.

The plan is the duty, not the survey

Where asbestos is present or presumed, the regulation requires a written plan. It identifies the parts of the premises concerned and sets out the measures for managing the risk: monitoring the condition, maintaining or safely removing the material, and giving information about its location and condition to anyone liable to disturb it.

A survey report is not a plan. It is an input to one. The usual version of this failure is an organisation with a competent, expensive survey in a folder. No plan built from it. No review date. No mechanism for putting the information in front of the contractor who turns up to run a new cable through a ceiling void. The survey discharges nobody’s duty on its own, and having one often creates a false sense that the duty is done.

The information duty is what bites in practice. HSE’s survey guide HSG264 separates a management survey, which supports the ongoing duty, from a refurbishment and demolition survey, which is intrusive and is what is needed before work disturbs the fabric. Commissioning the first and then doing work that required the second is a well-worn route to an incident. The Approved Code of Practice, L143, sets out what “suitable and sufficient” is taken to mean.

The line that catches people

Regulation 4 also places a duty on everyone else. Every person must cooperate with the duty holder so far as is necessary for the duty holder to comply. That is easy to skim past. It is also the provision that makes an asbestos register a live document instead of an archived one, because the maintenance team, the contractors and the tenants are all obliged to feed it.

If you take one thing from this, take this. Find out which party the lease puts the duty on, before you find out the hard way. It is a ten-minute question with a decade of consequence.