The Asbestos Discovery Mid-Refurbishment
You are the contract administrator on a £450,000 refurbishment of a 1970s office building for a commercial client. The works are 6 weeks into a 16-week programme. The contractor has opened up a ceiling void and discovered what appears to be asbestos insulating board (AIB) around a steel beam and pipework, in an area not identified in the refurbishment and demolition asbestos survey (which was a management survey, not a refurbishment survey). The contractor has stopped work in that area and is claiming a delay. The client is pressing to keep the programme, and the contractor has asked whether they can 'just board over it' and carry on. The building is partly occupied by the client's staff on the floor below.
1. Set out the immediate health and safety and legal actions required.
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Work in the affected area must remain stopped. The material must be treated as presumed asbestos until sampled and analysed by a UKAS-accredited laboratory. Under the Control of Asbestos Regulations 2012, the client (as dutyholder) must ensure a refurbishment and demolition survey is carried out before works continue - the existing management survey is not sufficient for refurbishment. The area must be segregated and signed, and access restricted. The client's staff on the floor below must be informed and, if there is any risk of fibre release (e.g. via services penetrations or the void), the area should be assessed by a competent person. If the material is confirmed as AIB, any removal must be by a licensed contractor (AIB is licensable work) with notification to the enforcing authority where required, and air monitoring/reassurance testing before reoccupation. The contractor's 'board over it' proposal is not acceptable - it would leave the material in place, potentially disturbed, and would breach the duty to manage.
2. Advise on the contractual position: the delay claim, the cost, and the programme.
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The starting point is the contract. If the asbestos was not identified in the pre-contract information and the contractor could not reasonably have foreseen it, this is likely a relevant event (delay) and a compensation event (cost) under a JCT-style contract, entitling the contractor to an extension of time and loss and expense. The fact that the original survey was a management survey rather than a refurbishment survey is a significant point - the client (or their consultant) may have failed to provide adequate information, which strengthens the contractor's position. The client's desire to keep the programme does not override the legal and safety position. I would recommend: (1) instruct the contractor to proceed with sampling and a refurbishment survey immediately; (2) issue a formal instruction recording the discovery and the suspension; (3) assess the delay once the survey results are known; (4) reserve the client's position on cost while the survey is procured. The client should be advised that attempting to compress the programme by skipping the survey would be a false economy and a regulatory risk.
3. What should have been done differently at pre-contract stage, and what would you recommend for the rest of the building?
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At pre-contract stage, a refurbishment and demolition asbestos survey should have been commissioned (not a management survey), because the works involved opening up ceilings and disturbing the fabric. The survey should have been made available to tenderers, and the contract should have included a clear allocation of asbestos risk and a mechanism for dealing with unforeseen asbestos. For the rest of the building, I would recommend: (1) a full refurbishment and demolition survey of all areas to be disturbed, before works resume; (2) a review of the asbestos register and management plan for the retained/occupied areas; (3) a clear communication plan for the client's staff; and (4) a review of the contractor's asbestos management arrangements and the site-specific risk assessment. The lesson is that the survey type must match the works - a management survey is for occupation, not for refurbishment.