This blog is primarily focused on how the Health and Safety at Work (Asbestos) Regulations 2016 will impact commercial Landlords. Specifically, the legislative requirement for Landlords to identify asbestos and have a management plan in place by 4th April 2018 for building built pre-2000.
What are the Landlord’s Responsibilities?
The majority of commercial Landlords will be classed as a PCBU (Person Conducting a Business or Undertaking). As a PCBU you have several duties that need to be executed:
- Duty to Identify Asbestos In The Workplace – This can be tricky as the only way to accurately determine if a material is or contains asbestos is to have samples analysed. See item 2.
- Duty to Analyse Samples – You are required to arrange for samples to be analysed by an accredited laboratory.
- Duty to Ensure Presence & Location of Asbestos is Indicated – You will need a system for identifying asbestos or asbestos containing materials (ACM’s) in the workplace so people working on or in the vicinity of the material can clearly see what they are working with.
- Duty to Prepare Asbestos Management Plan – This is particularly important as your management plan needs to be in place by 4th April 2018 and that means steps to identify the presence of asbestos need to be complete prior to April 2018. A management plan also needs to be reviewed so it can’t simply be deposited in a plant room and forgotten about.
An Asbestos Surveyor will be able to assist you with surveys, testing of samples and management plans. There are a huge number of buildings that are likely to require their attention prior to the 2018 deadline, so engage with them early. This is particularly important for Landlords with multiple properties.
As a PCBU, you are reasonably expected to know there is a risk from asbestos in a workplace you manage or control so come April 2018, saying you didn’t realise asbestos was present, simply wont cut the mustard.
Other Considerations
- Leases – Existing Leases may not be clear about which party is responsible for asbestos related issues. If your building does have asbestos and it can’t be safely managed, you may need to remove or encapsulate the asbestos if it is reasonably practicable to do so. Asbestos removal or encapsulation can be costly and disruptive. As with most health and safety related works, cost is not usually a determining factor of what is reasonably practicable. You should to speak to your legal team to understand your obligations under the Leases you have in place.
- Other Hazardous Materials – Asbestos is not the only hazardous material that has been used in construction. Lead and lead based paints, composite cladding panels, urea formaldehyde foam and man-made mineral fibres are just some of the other hazardous materials that could be lurking in your building. They all have the potential to harm, so consider looking for other hazardous materials when having your building surveyed for asbestos.
- Post 2000 Buildings – The import of asbestos was not banned in New Zealand until October 2016… that’s not a typo. 2016. Some fire doors were still being imported with asbestos as late as 2010 so you should not presume that your building is asbestos free simply because of its age.
Summary
If you are a commercial Landlord with a building built pre-2000, you need to start making the correct preparations to ensure you have an Asbestos Management Plan in place by 4th April 2018 or can demonstrate you are asbestos free. Engage a suitably qualified Asbestos Surveyor to assist you (refer to the ‘Asbestos Surveys’ link below).
Under the new legislation, there could be multiple duty holders for each commercial building. Landlords are not the only duty holders when it comes to asbestos. Tenants may also have duties under the legislation and it should not be assumed by a Tenant that their obligations have been fulfilled just because the Landlord has an Asbestos Management Plan in place. The same is also true of the reverse, where a Tenant has commissioned the Asbestos Management Plan.
The change to the legislation is a very positive step forward for our industry. This picture shows a desk in a plant room where contractors usually sits to complete paperwork. They probably have no idea that the beam directly above them is most likely lined with asbestos. This is just one of the reasons why mechanical and electrical contractors have a significantly greater risk of developing asbestos related diseases. It’s hard to take precautions when you don’t know what dangers are present and this legislation will hopefully change that.
by Victoria Richardson
Useful Links
Approved Code of Practice – Management & Removal – This is a must read for anybody wanting to understand their obligations; very easy to navigate and find information relevant to you. As well as having information on how to manage and remove asbestos, there is also information on its history in New Zealand, places is can be found in buildings and the associated health risks (see Section 2 of the document).
Asbestos Surveys – This is a WorkSafe document that tells you about who can undertake surveys, the different types of surveys and how they should be undertaken.
IANZ – Part of the Accreditation Council, IANZ is a Crown entity. Make sure you are using IANZ accredited testing facilities by typing in ‘asbestos’ in the search box.
Examples of Asbestos – The Health & Safety Executive (HSE) is a UK entity but their site has some images of the types of asbestos that can also be found in New Zealand.
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