Reply To: Legal requirements for access

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#4678
Andy F
Participant

Hi,

I just thought that it would be useful to share with you a response I received in relation to accessing properties to carry out electrical testing and inspection from our legal team;

By “Electric Fixed Wire Testing” I assume you mean the production of an Electrical Installation Condition Report.

with Gas being a legal requirement I feel this is easier
That is correct. It does make it easier.

You are correct that the tenancy gives a right of access, using force if required in an emergency. If access is refused the Local Authority can serve a notice seeking possession and take steps to obtain a possession order and/or it can apply to court for an injunction requiring the tenant to give access (which is what it used to do with gas check cases).

I have also been told that we may be able to use the Environmental Protection Act 1990 Section 79 and 80 Abatement Notices. These sections are specific to statutory nuisances which in laymen terms means the tenant is preventing the Local Authority from carrying out essential maintenance/checks which are used to demonstrate electrical safety. The benefit of this act and sections is that the order is in place forever afterwards.

If we were to pursue a tenant for no access would the above stand up in court for us and in your opinion would we be able to gain a warrant ? Or do you know of any other way we could obtain a warrant to gain access

The definition of statutory nuisance is contained in section 79(1) of the Environmental Protection Act 1990, which says:

79 Statutory nuisances and inspections therefor.
(1) Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—
(a) any premises in such a state as to be prejudicial to health or a nuisance;
(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
(e) any accumulation or deposit which is prejudicial to health or a nuisance;
(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;
(fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;
(g) noise emitted from premises so as to be prejudicial to health or a nuisance;
(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road;
(h) any other matter declared by any enactment to be a statutory nuisance;
and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

You will note that there is no mention of electricity or of “safe”/”unsafe”/“safety”. You would need to find an authorised officer (e.g. an Environmental Health Officer) who is prepared to say that the problem falls under (a), (b), (c), (d), (e), (f), (fa), (fb), (g), (ga) or (h).

I don’t think that the Electrical Installation Condition Report is the kind of thing that would be covered by the Environmental Protection Act 1990. From my quick searches of the Internet it appears that electrical installations degrade over time (of the order of decades) and for residential accommodation the Electrical Installation Condition Report is something that would be scheduled to be done every 5 years or on change of occupancy. It is not something that has an urgent pressing need to be done or that kind that courts would think justified a warrant in the ordinary case.