06 June 2017

Landlord and lessee obligations in respect of asbestos

Any person with management or control of a workplace or any person who conducts a business or undertaking at a workplace should consider whether they are complying with the requirements of the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011 with respect to asbestos.

Obligations include:

  • Taking steps to identify asbestos through an investigation of buildings that were constructed before 31 December 2003 by a competent person.  Note that if any part of the premises is not accessible or any material cannot be identified, then you need to assume that it contains asbestos.  You should retain a copy of the report created by the competent person.
  • If you own or manage a building that was constructed after 31 December 2003, you will still need to comply with the Act and Regulations if asbestos has been identified in your building, or you have grounds to believe that it may be present in your building.
  • You must then maintain and distribute a register and a management plan:
    • even if your building, constructed before 31 December 2003, does not contain any asbestos, you must still keep a register which records this;
    • you must provide a copy of the register and report to any potential lessees of commercial property before they execute the lease;
    • you should make clear under the management plan (and also under your lease agreement) who is responsible for any work that is to be performed in future;
    • any contractors working within your building must be provided a copy of the register, report and plan.  Any person conducting the work (even if the person is not instructed by the owner) must comply with the management plan; and
    • failure to comply with these obligations may lead to huge penalties for both individuals and companies.  Further, you may also be liable in negligence for any exposure or harm caused to others by the presence of asbestos in your building.

If you are contemplating demolition, refurbishment or any other type of work to your building, you should consult the register and management plan, and make sure that you engage a licensed asbestos remover prior to the work.  A licensed remover will be able to assist you to ensure that you comply with the multitude of regulations that apply to the removal of asbestos (which includes air and health monitoring, a removal control plan, decontamination sites, notification to Workplace Health and Safety Queensland and more).

Under the Building Act 1975, if your building was certified on or after 1 July 1997, then you must clearly display at the main entrance to the building a certificate of classification.

If your premises have been identified as containing asbestos then you may also need to register this on the contaminated land register.  If your land is placed on the register then you must notify all current and prospective tenants of the registration. Failure to disclose this information may result in the termination of any leases, and fines.

We recommend that any person who owns commercial premises that they lease, or any tenant who conducts a business or undertaking, review whether the building was constructed before 31 December 2003.  If you discover that the building was constructed prior to this date, you should take steps to ensure that any area containing asbestos is clearly labelled, a register is created and distributed, along with a management plan.  You may also want to consider whether there should be any special terms contained in your lease agreement in relation to the responsibility for the removal of asbestos into the future.

For more information, please contact us on 4036 9700.

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