Finding and sampling asbestos

It is not possible to contract out of a statutory duty but, excepting this, contractually it is possible to agree any exclusion, or assumptions, including matters pertaining to asbestos, with the client, subject of course to the Unfair Terms in Consumer Contracts Regulations 1999.

In addition, the insurance provisions of some surveyors may exclude any involvement whatsoever with asbestos and surveyors will need to be familiar with the precise terms of their professional indemnity insurance policy and clarify issues with their brokers where necessary.

Notwithstanding this, building surveys are conducted for a variety of purposes and RICS publishes guidance for each (e.g. Building Surveys of Residential Property, Building surveys and technical due diligence of commercial property).

Virtually all of these publications, directly or indirectly, include some reference to asbestos, perhaps as a contaminant or generically as a matter likely to affect the value of the building.

These publications will also determine the scope of the investigation and any limitations on the areas that will be routinely inspected and those that will not.

Regulation 4, the duty to manage asbestos, which first came into force on 21 May 2004 as part of CAWR 2002 and which has been consolidated within CAR 2012 has significantly changed the extent to which the surveyor is obliged to be aware of asbestos in non-domestic buildings.

In the first instance, the publication of CAR, as well as the 1st edition of the RICS Asbestos guidance note in June 2003, and the extensive publicity associated with these, has raised the profile of asbestos. Thus the knowledge which the average surveyor is reasonably expected to have on this specialist subject, and on which he or she may be judged by his or her peers and/or the courts is now higher than before this date.

When accepting an instruction for a building survey, enquiries should be made to determine whether the client has separately commissioned a specialist asbestos survey or has existing information on asbestos, with which he or she is satisfied. In either case, asbestos can be effectively excluded from the survey on the grounds of unnecessary duplication.

In the case of non-domestic properties, the regulations require that each dutyholder has a suitable written plan for managing asbestos in the parts of their premises for which they are responsible and this must be made available on request.

Thus, like fire risk assessments or certificates for lifts and cooling towers, the existence or absence of a plan will give the surveyor the first indication of compliance or non-compliance with statutory requirements.

In the case of non-compliance, it may be sufficient to report this and recommend the appointment of a suitable specialist to inspect and advise on this particular aspect of the building. For a lift or cooling tower this would be a services engineer, in the case of asbestos, an asbestos surveyor.

Where there is written documentation then this should be considered, if appropriate. This is necessary for the assessment of the risk to the surveyor's own health and safety in carrying out the survey and should identify those areas that are considered unsafe to enter without special precautions.

When reviewing documents, the matters that may need to be considered are:

• the competence of the author of the document (e.g. was it compiled by a qualified asbestos surveyor or by the unqualified dutyholder?);
• the scope and completeness of the inspection (limitations and any areas that were inaccessible);
• if a management plan, whether this is based on a survey or, as an interim measure, a general presumption that all elements may contain asbestos or a combination;
• the type of survey (Asbestos: The survey guide);
• the date of the inspection (to consider the guidance published at that time or prior to significant physical changes to the premises);
• if a management plan, the date on which it was last reviewed and records of any subsequent actions to remove or to control any identified or presumed risk.

The surveyor is not required to check on the accuracy of the contents. However, if, during the survey, the surveyor suspects that there are significant discrepancies, the fact that there is a discrepancy (not the details of any such discrepancies) should be pointed out.