Damp proofer legal issues

Moisture control applied to building walls to prevent moisture from passing into the interior spacesAs a business person engaging in potentially hazardous activities - as well as activities that could be harmful to the environment - there is certain legislation that you should be aware of.

The following is an outline of some of the areas which may well be relevant to you. The list is not intended to be exhaustive.

What licences does a damp proofer need?

Depending on exactly what you do and how you work, there are certain licences and registrations that you may need to operate as a specialist damp proofer.

Building waste

If you are going to transport building waste of any description (which is classified as a controlled waste), you will need a certificate of registration as an upper tier waste carrier ('waste carrier' in Scotland). These are issued by:

  • the Environment Agency in England
  • Natural Resources Wales
  • the Northern Ireland Environment Agency
  • the Scottish Environment Protection Agency (SEPA) in Scotland

It currently costs about £155 (a bit more in Scotland, a little less in Northern Ireland) for the initial registration fee and a further renewal fee of about £105 every three years.

If you don't carry building/demolition waste, but you do carry waste that you produce on a regular basis in the normal course of your business activities (for example empty packaging from the products you use), then you will need to register as a lower tier waste carrier. There is no charge for registering.

Biocides and other chemicals

If you undertake timber treatment operations then you are likely to be using biocides such as wood-preserving chemicals. Any professional users of biocides - including those using products designated for professional use only - must by law have received appropriate information, instruction and training on compliance with legal controls and correct usage. There is a wide range of training courses available from private training providers covering various different aspects of biocide use, but the Health and Safety Executive (HSE) doesn't recommend or require any specific course.

Any biocidal products that you use in the course of you operations must be approved for the purpose and must carry an HSE approval number. If you intend to manufacture or compound any of the biocides or pesticides you'll be using then you should contact the HSE - or the Health and Safety Executive Northern Ireland (HSENI) - to find out about any requirement to register the product and obtain an approval number.

REACH regulations - registration, evaluation, authorisation and restriction of chemicals - require businesses that manufacture or import (from outside the EU) one tonne or more each year of any chemical substance to register a dossier of information about the substance with the European Chemicals Agency.

There's more information about biocides, pesticides, chemicals and REACH regulations on the HSE website.

Other licences

You should also be aware of the following:

  • skips placed on a public highway require a Skip Permit from the local authority. Certain conditions may be attached to the licence. Normally the skip hire company will arrange the necessary licences, but it's worth making certain of this
  • before erecting a scaffold on or over a public highway, you are obliged by law to obtain a permit from your local highway authority. Some local authorities also require you to obtain a scaffolding permit before putting up a scaffold in a public place. If you use a specialist scaffolder, they will often take responsibility for arranging any scaffolding permits needed. For more information, contact your local authority planning department or environmental health department
  • anyone who sells, advises on, arranges or assists in selling general insurance may need to be registered with and regulated by the Financial Conduct Authority (FCA) even if insurance is only a small part of their business. For example, many insurance backed warranties are classed as general insurance products for the purposes of this regulation. Visit the FCA website for further information
  • if consumer credit is offered to customers you will normally need consumer credit authorisation from the FCA (interest free credit agreements can be exempt from the authorisation requirement under certain circumstances)
  • businesses which keep computerised records of individuals' personal details - perhaps for credit finance purposes - may be required to register as data users with the Information Commissioner's Office (ICO)
  • if your business operates goods vehicles with a gross plated weight of more than 3.5 tonnes (or unladen weight more than 1,525 kg for unplated vehicles) then it will need a goods vehicle operator licence in England, Scotland and Wales. In Northern Ireland you may need a goods vehicle operator's licence from the Transport Regulation Unit (TRU) of the Department for Infrastructure (DfI). More information about goods vehicle operator licensing is available on the Gov.uk website - and from the DfI in Northern Ireland

Note that any business which produces 500kg or more of hazardous waste at a premises in Wales within a 12 month period must register with Natural Resources Wales as a hazardous waste producer. If you produce 500kg or more of hazardous waste at a single customer's site (or at any other site which you do not own or occupy) then it is up to the owner of that site to register. If you remove the hazardous waste from your clients' sites, and this amounts to 500kg or more in total for a 12 month period, then your own premises or depot must be registered as a 'service premises'. You can find out more about hazardous waste producer registration on the Gov.uk website.

Voluntary certification

Many would-be customers will want to satisfy themselves that your business does good quality work using suitable materials. One way of demonstrating your commitment to quality is to gain certification for your workmanship and to use certified materials. Various different certification schemes exist, including the Certificated Surveyor in Remedial Treatment (CSRT) qualification, the Construction Skills Certification Scheme (CSCS), the government-backed TrustMark scheme and the ISO 9000 quality standard.

Although it's not mandatory for operators of plant machinery to hold a skills registration card, it's a good way of showing that your business complies with the requirement under health and safety legislation for plant operators to be suitably trained. More and more contractors, clients and sites only permit plant operatives who hold a valid skills registration card or 'ticket'. The skills development body CITB offers one of the best known card schemes, the Construction Plant Competence Scheme (CPCS). You can find out more about the CPCS on the CITB website.

Control of pesticides and biocides

Biocide and pesticide control regulations regulate the preparation, distribution and use of chemicals such as those used to treat rot wood fungi, mould and wood-boring insect infestation. If you intend to manufacture or compound any of the pesticides that you will be using then you should contact the Health and Safety Executive (HSE) - or the Health and Safety Executive Northern Ireland (HSENI) - to find out about registering and clearing the product for use.

The law states that biocidal products must always be stored in their original containers - this is in any case a sensible safety precaution.

Most proprietary biocide and pesticide compounds have statutory conditions of use, meaning that you must only use them in the manner that they are intended. Your employees must by law be properly trained in their safe and appropriate use. The manufacturers and distributors of the products you use should be able to give you full details and recommend suitable training options.

There's more information about biocides and pesticides on the HSE website.

Protecting yourself, your workers and the environment from harmful substances

The Control of Substances Hazardous to Health (COSHH) Regulations apply to the use and storage of any potentially hazardous substances such as wood preservatives, chemical damp course compounds and specialist coatings.

Environmental protection legislation covers the disposal of building and demolition waste. Special provision is made for hazardous waste products and the disposal of waste chemicals and biocides. Environmental legislation also covers potential pollutants and nuisances like noise and dust.

Your local environmental health department will be able to advise you on how the above legislation affects your business. The Environment Agency in England, Natural Resources Wales, the Northern Ireland Environment Agency, and the Scottish Environment Protection Agency (SEPA) in Scotland can also give advice about complying with environmental legislation.

REACH regulation

Because you use chemicals in your business activities you may be affected by regulations referred to as REACH - this stands for the Registration, Evaluation, Authorisation and Restriction of Chemicals. Check with your supplier that the chemicals you use have been correctly pre-registered or registered. You can find out more about how REACH and other chemical legislation may affect you on the HSE website.

Building Regulations

'Building Regulations' is a general term for different pieces of legislation in England and Wales, Scotland and Northern Ireland. Work that you do on domestic buildings must comply with local Building Regulations where applicable. Your local authority building inspectorate will be able to give you more information. Details of the Building Regulations are available on the Planning Portal and the Building Control Northern Ireland websites.

Health & safety, fire

Some key areas where health and safety regulations affect your business, particularly if you employ staff, include:

  • correct handling of hazardous substances
  • adequate provision and use of protective clothing and equipment
  • use of drilling and cutting equipment
  • working at height (the Work at Height Regulations apply to both employers and self-employed workers)
  • access to first aid equipment
  • reporting of any accidents at work
  • use of any electrical equipment

The Health and Safety at Work Act and regulations made under it require operators of machinery like construction plant to be properly trained and qualified. Skills registration card schemes like the Construction Plant Competence Scheme (CPCS) run by CITB enable employers to show that their plant operators are properly qualified. You can find out more about the CPCS on the CITB website.

You must comply with workplace health and safety and fire safety legislation.

Employment legislation

Anyone employing staff must comply with employment legislation. Important areas of legislation include:

Recruitment and employment contracts

Pay and pensions

Working time: hours, leave, flexible working

Employment policies

Sickness and sick pay

Maternity, paternity and adoption

Discrimination

Managing home workers, remote workers, lone workers

Discipline and grievance

Dismissals and redundancies

Employment tribunals

Vehicles, towing and drivers' hours

Be aware that if you use a trailer in your business - perhaps to carry a large item of equipment - and you tow it behind something like a pick-up or 4x4 then there's a good chance that the combined weight of the 'vehicle train' will be over 3.5 tonnes, meaning you'll need to fit a tachograph and observe the drivers' hours rules. There's more about this on the Gov.uk website.

Consumer protection

Most people have heard stories about 'pushy sales people' and there is consumer protection legislation to protect customers from unscrupulous sales tactics. Legislation covers fair trading in general, and specific areas such as:

  • the use of scare tactics
  • 'cooling-off periods' to allow customers time to think about whether they really want the services that they've signed up to
  • accurate price marking, and 'bargain' offers being genuine
  • contracts being fair
  • services being of adequate quality

Make sure that your own services, sales techniques and terms of trade meet all the necessary legal criteria - this should go without saying in a sound business! Be aware that the industry has been brought into disrepute by 'cowboys' who carry out dishonest surveys and carry out unnecessary remedial work. More information about consumer protection and fair trading legislation is available on the Gov.uk website. The Trading Standards Business Companion website includes detailed information for businesses on a wide range of fair trading topics.

Sources of further information

The employing people section of the Gov.uk website includes information and guidance on all aspects of employment legislation. Information for businesses in Northern Ireland is available on the NI Business Info website.

Insurance for a damp proofer

When you start up in business you will need insurance cover. Contact an insurer and explain to him or her exactly how the business will operate - the insurer will then recommend what cover you should have. This might include:

  • employer's liability
  • public liability
  • professional and contract indemnity
  • product liability
  • environmental damage
  • legal expenses cover
  • tools, plant and equipment on site
  • motor insurance (for business vehicles), possibly with cover for goods and equipment carried in your vehicles
  • personal cover, including accident and injury, loss of earnings and so on
  • business interruption
  • premises cover and contents if you have any business premises (if you run the business from home and store tools and materials there, be sure to notify your existing household insurer)

You might also want to offer an insurance backed guarantee scheme - these are underwritten by specialist insurers. Members of the Property Care Association (PCA) can take advantage of the scheme offered by Guarantee Protection Insurance.

When taking out personal and employer's liability cover it is particularly important to give precise details of the types of activity that you and any staff will be engaging in. Be prepared to answer questions about the type of work you will be doing, where you will be working, the type of substances, materials and equipment you will be using, the height at which you will be working, your health and safety policy and so on.

Business insurance policies for construction firms can be very costly and it would be a good idea to get some quotes at an early stage in your planning. Shop around to obtain the best cover at the most affordable price.

Some trade associations, including the PCA, negotiate special business insurance packages on behalf of their members. Most reputable associations require their members to have a certain minimum level of public liability insurance. Trade clients like large building contractors and local authorities may require this too.

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