Thanks for clarification Martin.
As I understand it, the NHBC warranty covers garden area only up to 20m
from the habitable parts of the house, so it would cover the area of
smaller plots, but not larger plots (don't know the size of the plot under
discussion here, or the distance of the asbestos from the house). The NHBC
requirement is that clean topsoil is provided to a depth of 100mm if there
is not already existing topsoil (i.e. as would be the case with a
brownfield site), and that's about it from the point of view of soil as far
as I know, assuming the site is not one that is identified as contaminated.
Again, the issue would be whether or not any asbestos was obvious to the
developer.
Provided the land is stable and reasonably accessible (as required by the
NHBC), and either has existing topsoil, or clean topsoil to a depth of
100mm has been added (if there was no existing topsoil), and there was no
reason to suspect prior asbestos contamination, and the developer has not
put the asbestos there himself, then it would seem that the developer has
fulfilled his obligations. Of course, due diligence applies, but with no
suggestion of asbestos contamination given in the planning consent, then I
don't believe the developer has an obligation to scalp the site "just in
case" there might be asbestos there.
Also, if the material is only asbestos cement (which is what is normally
found in gardens) as opposed to blue asbestos lagging material, then all
the homeowner has to do is damp it down, dig it up and bag it (wearing a
mask and goggles, just in case), and take it to the nearest waste site that
accepts asbestos (after calling them first to check they have capacity). If
he doesn't want to do it himself then he can get a waste contractor in. No
licensed disposal is required for asbestos cement, and if this is what it
is, and the quantity is only relatively small (like several bagfuls), then
I'm wondering if perhaps a mountain is being made out of a molehill.
However, if the homeowner could prove that the developer put the asbestos
there, or he could prove that the developer knew it was there, then he
would have case. And of course, if it's blue asbestos lagging material then
proper licensed disposal will be required.
As you rightly point out....more information is needed!
Pete Millis
Rottingdean Garden and Landscape Services Ltd
Brighton
And
Centre for Environmental Research
School of Life Sciences
University of Sussex
Falmer
Brighton
--On 15 May 2009 12:38 +0100 martin wright <[log in to unmask]>
wrote:
> Peter your wrong about the NHBC warranty and the extent of the building
> regulation coverage it has not been just the building footprint for quite
> some time and the plot area is relevant.
>
> I would accept the point that not everthing is obvious on a site and you
> dont need to uncover everthng to build a house and garden (unless you
> should have because of its potential condition) but due diligence is
> indicated and ignorance is not acceptable particuarly if the liability is
> strict or tightly defined in law which it is for pollution and
> contamination.
>
> The part IIA regime devotes pages and pages of regualtion and guidance on
> liabitlites if that's the route chosen. The developer will allmost
> certainly have introduced new senstive receptors to tthe site and will
> find it difficult (unless therse some relevant facts ) to show they are
> not responsible for remdiation. They may have caused or knowingly
> permitted as well.
>
> In planning terms the developer wll also be responsible for a safe
> development.
>
> It would be wise I think to plot where exactly asbestos is being found and
> what construction, drains or landscaping interacted with that area if
> simialr arguments might be advanced by the developer.
>
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