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Section 21 and Gas Safety – post start of tenancy installations


Our grateful thanks to Noah Gifford of Pallant Chambers for the following note of a County Court judgment on the endlessly vexed issue of gas safety records and section 21 notices. (We’ve seen the judgment). This time, the issue is the requirements when a new gas device (here, a boiler) is installed after the start of the tenancy.


The issue of gas safety certificates has been revisited again in Van-Herpen v Green & Green (2023) County Court at Hastings, 4 December 2023, in which I acted for the Defendants. This time, the questions for the court were whether a Building Regulations Compliance Certificate (“BRCC”) from the installation of a boiler or a Gas Safety Certificate (“GSC”) arising out of a plumber’s visit some two months later had to be served for the section 21 notice to be valid.

Van-Herpen v Green & Green. Hastings County Court. 17 November 2023 (judgment 4 December 2023)

Van-Herpen involved a claim by the Landlord for possession under the section 21 accelerated procedure. The Tenants took up occupation of the Property in September 2018 under an assured shorthold tenancy dated 5 September 2018. The day after they took up occupation of the Property, a new boiler was installed – the previous one having been removed some months prior. Mr Skiggs, the gas safety engineer, commissioned the new boiler and, in the process of doing so, “safety checked” the boiler and checked for “integrity of the flue gases” in line with the manufacturer’s installation specifications. Mr Skiggs created a BRCC for the boiler; however, this was never served on the tenants before the service of the section 21 notice.

Subsequently, on 14 November 2018, Mr Skiggs returned to the property to look at the boiler after the tenants complained of issues with it. Despite the boiler being new, Mr Skiggs “performed a complete safety check” which specifically included checking the boiler and flue. However, he did not create a GSC. He and the Landlord both stated that “a gas certificate was not necessary or issued at the time as the boiler was under a year old”.

The Landlord reiterated this position at trial stating that GSC were only annual requirements and any further requirement would be onerous. In respect of the BRCC, the Landlord averred that, as with new cars and MOTs, the BRCC need not be served upon installation of the boiler. The Tenants submitted that both the BRCC and a GSC arising out of the November inspection were required to be served because the works fell within “check” for the purposes of regulation 36(6)(c) of the Gas Safety (Installations and Use) Regulations 1998 (“the 1998 Regulations”).

The Deputy District Judge agreed with the Tenants and found that the section 21 notice was invalid under section 21A(1) of the Housing Act 1988. Firstly, in respect of the installation of the boiler, the Judge stated:

It seems to me that these checks were relevant checks within the meaning of regulation 26 ( 9) Gas Safety Regulations and that consequently a “ record” was required to be made of such a check pursuant to Regulation 36 ( 3) Gas Safety Regulations.

I am not persuaded by the claimant’s submission that such a check and consequential record is not required within 12 months of a boiler being installed. That conclusion places a gloss upon the wording of Regulation 36 ( 3) Gas Safety Regulations. In particular, if Parliament had intended to restrict the requirement to keep a record of such a check within 12 months of installation of a gas appliance, it could have expressly said so. However, it seems to me that all that Regulation 36 ( 3) Gas Safety Regulations does, is set a minimum standard, such that a relevant check is carried out at least within 12 months of installation. However, if an earlier material check is performed earlier than that 12 month period, then it seems to me that Regulation 36( 3) Gas Safety Regulations still requires that a relevant record should be created……

I reject the claimant’s submission that since the primary purpose of the visit on 6/9/18 was not to undertake a gas safety check (but rather to install the boiler) that negates the need to prepare a GCS and provide it to the tenant, if the nature of the works and checks undertaken co- incidentally match the requirements of regulation 36 Gas Safety regulations.

Accordingly, the Judge found that a relevant record was required to be created and served to comply with regulation 36 of the 1998 Regulations. The Learned Judge found that the BRCC was such a relevant record, and thus, the Landlord’s failure to serve the same was fatal to the section 21 notice’s validity.

Secondly, in respect of Mr Skiggs’ attendance on 14 November 2018, the Judge applied the same reasoning and found that the “complete safety check” of the boiler and flue was a check for the purposes of regulation 26(9), and thus, a record had to be created and served pursuant to regulation 36(6)(c). No such record was created; thus, the section 21 notice was held to be defective by this failing as well.


Van-Herpen has finally dealt with an issue that has fallen between the significant authorities of Trecarrell House (NL note) and Byrne (NL note). The installation of a new gas fitting is not akin to buying a new car. A record is required as soon as the check is undertaken, whether that be at the point of installation or within the first twelve months. Indeed, as DDJ Wright pointed out, there is no reason for the courts to interpret the 1998 Regulations differently in the absence of express Parliamentary authority. As such, the initial twelve-month period from installation is merely “a minimum standard”.

The Judgment now means that if a Landlord renovates their flat and installs a new boiler, but no BRCC is created, and then lets it out within 12 months, following Byrne, the Landlord will be irredeemably barred from using section 21.

We will have to see whether the Landlord appeals. Whether she does or not, it is going to be interesting to see if and how DDJ Wright’s ratio is applied by the courts going forward.

In any event, it’s time for Giles to update the section 21 flowchart again – maybe one day he will be able to retire it.


Editor’s comment

I don’t think the s.21 flowchart would be able to take the permutations… It needs tidying anyway, but I have been overcome by the faint hope that its end is in sight.

This is certainly an interesting decision, although, as we have to say every time, it is a first instance county court decision so not binding in any way. (I do have to point out that Byrne was also a county court decision – albeit a county court appeal and one by the estimable HHJ Bloom – and so not an authority, though of persuasive value.)

But this does pose the question – does any inspection of a gas installation count as a relevant check under Reg 26(9), and thus require the giving of a record to the tenant under Reg 36(6)?

(I am also presuming that the installation of the boiler was a new thing and that there was no pre-existing GSC that pre-dated the tenancy.)

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Nik Taylor

    The normal annual gas safety test is done on form CP12. For new boiler the from to be used is CP1.

  2. Tom Jungle

    A key question for me would have been from the statement ‘The day after they took up occupation of the Property, a new boiler was installed’ – did the landlord comply with Regulation 36. (6) (b) and give a copy of the last record made in respect of each appliance or flue to any new tenant of premises ‘before’ that tenant occupied the premises?

    • Giles Peaker

      As I said in my comment, the presumption is that there was not a pre-existing gas installation. If so, no relevant pre-tenancy GSC.

      • Chris Daniel

        Far be it for me to argue against a landlords case, but there was obviously a Gas supply, pipework, meter etc. I understand it was just there wasn’t a boiler fitted. So the property would still require a Gas cert.

        • Giles Peaker

          Hence my presumption that it was all a new installation, as otherwise there would have been a pre-tenancy GSC (or if there wasn’t, that in itself would have doomed the section 21 completely).

        • David d’Orton-Gibson

          36(2) seems to deal with the pipework without reference to the annual timescale or records. 36(3) is very clearly drafted in a more limited capacity to only catch appliances and flues. Hence, no boiler on move in could mean pipework has to be safe, but not covered by the gas safety record.

          Giles the reference to 36(6)(c), does not seem right as I think there is only an (a) and (b) in 36(6)? Could it just be 36(6) or perhaps 36(3)(c)?

        • Giles Peaker

          36(3)(c), I presume.

          On pipes, look at the definition of “relevant gas fitting” at 36(1), but yes 36(3) is more restricted than 36(2) duty, I agree. Would depend what was in there…

  3. alan armstrong

    The text states “the previous one having been removed some months prior”, which implies the existence of the pipework up to the point a boiler would normally be attached.

    When the boiler was removed (gas work due to the need to terminate the gas supply at, at least, the boiler end) there should have been a safety check done on the gas installation and pipework.

    By this decision, that check at least, should have been provided to the tenant before the tenancy was signed, even if just to confirm no gas leaks.

    • Giles Peaker

      So it does – and that does raise a question about the ‘start of tenancy’ GSC. As this was not raised or pursued – though relevant cases cited – I take it that it was provided, so the issue then became the safety record on the subsequent installation.

  4. wayne

    If a tenant moves into a new build and a new boiler was installed 2 months earlier, before they moved in. Would it make sense to do a gas safety check or apply a building regulation certificate?

    • Giles Peaker

      There should be both a pre-existing GSC and the BRC for the boiler, assuming there was a previous gas installation

  5. Bob Loblaw

    This decision should not be considered even persuasive on these issues. It seems to place too wide a meaning on the word “record” in r.36(6)(b). Not every interaction with a boiler should necessarily produce a record within the meaning of r.36(3)(c).

    It seems to me that a BRC should not constitute a record, especially if it is not required to contain all of the details set out in the subsections of r.36(3)(c).

    If “the last record” can mean written details of any interaction with a boiler, which is the logical endpoint of this decision, then that could lead to outcomes which are at odds with the intention of the legislation. A landlord could install a boiler, then go back a month later, perform a cursory check and take a record of that check. If they then rent the property out a week later, they would seemingly only be required to provide the record of the cursory check (‘boiler looks fine, no visible issues’).

    The correct approach should be that only a full GSC, which is compliant with r.36(3)(c), can constitute the “record” for the purposes of r.36(6)(b). A BRC should not count, nor should some lesser form of record from an inspection.

    Were it not for the upcoming removal of the s.21 procedure, the current lacuna (the Byrne situation) would seem ripe for closure by amending the legislation.

    Introducing further, irremediable bars to the use of the s.21 procedure is surely the wrong approach to interpreting the legislation.

    • Giles Peaker

      I don’t think that is quite the implication, though I share doubts about the BRC being sufficient to meet 36(3)(c) . The suggestion is that any work (via Reg 26(9)) or check (via Reg 36(3)(a)) would trigger the requirement for a GSC under 36(3)(c).

      • Bob

        Reg 26(9) is a red herring here.

        The requirement for a GSC under 36(3)(c), which is what the Judge should have been concerned with, arises from 36(3)(a) and (b).

        That is clear from “…any appliance or flue so checked…” in the first line of (c); the requirement arises from checks carried out in accordance with the two preceding subsections (i.e. (a) and (b)). That has to be the meaning of “…so checked”.


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