Ian Bond had successfully represented the landlord at trial before HHJ Evans, securing a possession order having argued Regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 only required an Energy Performance Certificate to be given at any time prior to the service of a Section 21 notice.
The Defendants appealed, arguing because Regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 specifically excluded the 28-day period for compliance in relation to Gas Safety Certificates, the lack of a similar provision for Energy Performance Certificates meant one must be provided prior to the signing of a tenancy. The Defendants further argued Parliament’s intention was for Energy Performance Certificates to be ‘front-loaded’, with service prior to the tenancy required to fulfil the legislative purpose, and the decision in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 to allow late service was either distinguishable or wrongly decided.
Before the Honourable Mrs Justice Dias, Ian submitted that Regulation 6(5) of the EP Regulations 2012 did not include a temporal requirement and therefore there was no need for a corresponding provision within the AST Regulations. Ian further submitted the ‘front-loaded’ purpose of an Energy Performance Certificate was fulfilled by Regulation 6(2) of the EP Regulations 2012 which required one to be provided within a certain timeframe. Finally, Ian submitted Trecarrell House v Rouncefield remained relevant, not for its facts but for its approach.
Mrs Justice Dias, giving an ex tempore judgment, agreed Regulation 6(5) of the EP Regulations 2012 did not impose a timing requirement, stating rather it was an administrative requirement, with Regulation 6(2) of the EP Regulations 2012 meeting any ‘front-loaded’ intention. Mrs Justice Dias found she was unable to answer the question posed by Ian that if it had been Parliament’s intention that failure to provide a copy of the Energy Performance Certificate prior to the start of a tenancy would result in an irremediable bar on the use of Section 21, why did it not include Regulation 6(2) of the EP Regulations 2012 as one of the prescribed requirements. Mrs Justice Dias held the purpose of Regulation 6(5) of the EP Regulations 2012 was to ensure there was a valid Energy Performance Certificate in place at the time of service of a Section 21 notice, and as the landlord had served an Energy Performance Certificate prior to the service of the Section 21 Notice, he was not in breach.
Many thanks to Lubna Saeed and Mohammed Saeed of Regal Law Solicitors for their instruction and assistance on this matter.
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