Public Health and Safety (Rented Dwellings) (Jersey) Law 2018

Public Health and Safety (Rented Dwellings) (Jersey) Law 2018 Arrangement Article part 1 3 introductory 3 1 Interpretation . 3 2 Meaning of “rented dwelling” . 4 part 2 5 health and safety in rented dwellings 5 3 Duty of Minister to promote health and safety in relation to rented dwellings . 5 4 Codes of practice . 6 5 Licensing Regulations . 6 PART 3 7 ENFORCEMENT 7 6 Powers of investigation . 7 7 Risk assessment and enforcement action . 9 8 Hazard awareness advice . 9 9 Notices . 9 10 Supplementary provisions relating to notices . 10 11 Appeals against notices . 11 12 Power of Minister to undertake work . 12 13 Power to require production of documents . 12 14 Power of Minister to undertake emergency remedial action . 13 part 4 14 criminal liability 14 15 Offences . 14 16 Defences . 15 17 Offences by bodies corporate etc. 15 PART 5 15 MISCELLANEOUS 15 18 Civil liability . 15 19 Service of notices . 15 20 Orders . 16 21 Saving provision . 16 22 Citation and commencement 17 Public Health and Safety (Rented Dwellings) (Jersey) Law 2018 A LAW to promote the health and safety of persons in rented dwellings, and for connected purposes. Adopted by the States 13th December 2017 Sanctioned by Order of Her Majesty in Council 14th March 2018 Registered by the Royal Court 23rd March 2018 THE STATES , subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law – part 1 introductory 1 Interpretation (1) In this Law, unless the context otherwise requires – “ authorized person ” means a person authorized by the Minister under Article 3(2); “ dwelling ” has the meaning given by Article 2(1)(a); “ hazard ” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling that arises from a deficiency in the dwelling or in any land or building in the vicinity of the dwelling; “Minister” means the Minister for the Environment; “notice” means a notice issued under Article 7; “ person having control ”, in relation to a dwelling, means any of the following – (a) the owner; (b) a person entitled to receive rent for use of the property by another, or who would be entitled to receive rent if the dwelling were let under any agreement by the terms of which rent were due; (c) a person responsible for repairs to the property; (d) a person responsible for allowing one or more other persons to occupy the building for any period of time, whether or not such person acts under an agreement or arrangement with any of the persons described in paragraph (a) to (c); “ prescribed hazard ” means a type of hazard prescribed by Order made under Article 3(2)(b); “ remedial action ” means action required by a notice as described in Article 9(1). (2) The States may by Regulations amend the following definitions – (a) “person having control” in this Article; and (b) “rented dwelling” in Article 2. 2 Meaning of “rented dwelling” (1) For the purposes of this Law, “dwelling” – (a) means any building or other structure, whether temporary or permanent, or any part thereof, used or capable of being used as living accommodation by one or more persons, together with – (i) any yard, garden, outhouses and appurtenances belonging to or usually enjoyed with that building or structure, and (ii) in the case of a building or structure in multiple occupation, any part or facilities used or enjoyed by the occupiers jointly or in common; but (b) does not include – (i) a caravan, or (ii) a vehicle or vessel. (2) A dwelling which is described in this Law as “rented” is a dwelling occupied, by a person who is not the person having control of the dwelling, as living accommodation – (a) for any period exceeding 30 days (which need not be continuous) in any calendar year; (b) in return for any reward (which need not be in money) or in connection with any employment, as further described in sub-paragraph (c)(ii); and reference to a “rented dwelling” may include, but is not limited to – (i) a lodging house within the meaning given to that expression by Article 1 of the Lodging Houses (Registration) (Jersey) Law 1962 [1] , and (ii) a dwelling occupied as living accommodation by a person in connection with that person’s employment (whether the employment is permanent or temporary, whether or not under a contract, and whether or not the employment is with the person having control of the dwelling). (3) For the purposes of this Article, and subject to paragraph (4), a building is said to be in multiple occupation where it is occupied by persons who do not form a single household, exclusive of any part of the building occupied as a separate dwelling by persons who form a single household. (4) Where a person who is both the owner and occupier of a dwelling permits the dwelling also to be occupied, for reward, by up to 2 other persons, that dwelling is not a rented dwelling for the purposes of this Law. (5) Any issue as to whether or not a dwelling is a rented dwelling is to be determined by the Minister, upon an application being made in writing to the Minister by either – (a) the person having control of a rented dwelling; or (b) the person occupying a rented dwelling. (6) An appeal against the Minister’s determination under paragraph (5) may be made to the Royal Court – (a) within the period of 28 days following receipt of the determination; (b) by either of the persons mentioned in that paragraph, and on hearing the appeal, the Royal Court may affirm the Minister’s determination or dismiss the appeal, in whole or in part and on such terms as it thinks fit, including substituting its own determination for the Minister’s. part 2 health and safety in rented dwellings 3 Duty of Minister to promote health and safety in relation to rented dwellings (1) The Minister shall be responsible for introducing measures to ensure minimum standards of health and safety to be met by rented dwellings. (2) For the purpose of carrying out the duty imposed by paragraph (1), the Minister – (a) shall authorize persons to take action on the Minister’s behalf in accordance with this Law and any enactment made under it; and (b) may make Orders for the purposes of securing the health and safety of persons in or about rented dwellings. (3) Orders under paragraph (2)(b) may prescribe – (a) the types of hazards that may be present in dwellings for the purposes of this Law; (b) the method of assessing the risks posed by prescribed hazards; (c) the level of risk that that is acceptable for any prescribed hazard. 4 Codes of practice (1) The Minister may, after consultation with such persons or bodies as appear to the Minister to be representative of the interests concerned – (a) prepare and issue codes of practice for the purpose of providing practical guidance in respect of any provision of this Law or any Order made under this Law; and (b) revise any such code by revoking, varying, amending or adding to the provisions of the code. (2) The Minister shall cause any code prepared under this Article to be printed and distributed, and may make such arrangements as the Minister thinks fit for its distribution, including causing copies to be put on sale to the public at such price as the Minister considers to be reasonable. (3) A failure on the part of any person to follow any guidance contained in a code issued under this Article shall not of itself render that person liable to proceedings of any kind, but – (a) any such code shall be admissible in evidence in criminal proceedings; and (b) if any provision of the code appears to the court conducting any proceedings to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. 5 Licensing Regulations (1) The States may by Regulations establish a scheme for the purpose of further ensuring the safety of rented dwellings, and the health and safety of persons occupying such dwellings, in accordance with this Law, and without prejudice to that general purpose such Regulations may make provision including, but not limited to, provision enabling the Minister – (a) to license dwellings to be used as rented dwellings; and (b) to impose charges – (i) in respect of the issue of licences for rented dwellings, and (ii) in relation to enforcement action arising out of a breach of the Regulations or a requirement of any licence. (2) Regulations under this Article may further – (a) create offences of, and impose penalties for, breach of a provision of the Regulations or of any licence; and (b) make such transitional, consequential, incidental or supplementary provisions as the States may consider necessary or expedient. PART 3 ENFORCEMENT 6 Powers of investigation (1) The Minister by any authorized person may, for the purposes of – (a) ensuring that minimum standards of health or safety of persons are met by a rented dwelling; or (b) investigating any prescribed hazard to the health and safety of persons occupying a rented dwelling, carry out or cause to be carried out an assessment of that dwelling, including assessment of any prescribed hazards in the dwelling. (2) Subject to the production, if required, of evidence of the authorized person’s authority, for the purposes mentioned in paragraph (1) the authorized person may – (a) at any reasonable time and upon notice to the occupiers of the dwelling in accordance with paragraph (3), enter a rented dwelling; (b) on entering the dwelling be accompanied by – (i) any other person, and (ii) any equipment or materials, that the authorized person considers necessary for any purpose for which the power of entry is being exercised; (c) make such examination and investigation as may in the circumstances be necessary, including investigation about the identity of the person having control of the dwelling; (d) direct that the dwelling, or any part of it, or anything in it, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c); (e) take such measurements and photographs, and make such recordings, as the authorized person considers necessary for the purpose of any examination or investigation under sub-paragraph (c); (f) take and retain samples of – (i) any articles or substances found in the dwelling, and (ii) the atmosphere in, or in the vicinity of, the dwelling; and (g) require any person whom the authorized person has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (c) to answer such questions as the authorized person thinks fit to ask. (3) An authorized person shall not seek access to any rented dwelling unless the authorized person has given 24 hours’ notice of the proposed entry to the occupier and, if the authorized person thinks fit, the person having control of the dwelling, if different, except – (a) in an emergency; (b) where the occupier or, in the absence of the occupier, the person having control of the dwelling consents to entry by the authorized person without prior notice; or (c) where notice was given but the occupier or, in the absence of the occupier, the person having control of the dwelling consents to entry by the authorized person at the end of a period of less than 24 hours. (4) If it is shown to the satisfaction of the Bailiff or a Jurat by information on oath that the authorized person has reasonable grounds for seeking entry to a rented dwelling, but – (a) admission to the dwelling has been refused; (b) refusal of admission to the dwelling is anticipated; (c) the dwelling is unoccupied or the occupier, whether or not the person having control, is temporarily absent; (d) the case is one of emergency; or (e) giving notice under paragraph (3) would defeat the object of the entry, the Bailiff or Jurat, as the case may be, may issue a warrant authorizing a police officer, an authorized person and such other persons as the warrant may specify to enter the dwelling, if need be by force. (5) On leaving any unoccupied dwelling entered by virtue of this Article the authorized person shall leave it as effectively secured against unauthorized entry as it was prior to entry. (6) A warrant issued in pursuance of paragraph (4) shall continue in force until the purpose for which the entry is required has been satisfied or for a period not exceeding 28 days, whichever is the later. (7) The period described in paragraph (6) for which a warrant shall continue in force may involve access to the dwelling on more than one occasion during that period and the authorized person may, on each occasion, be accompanied by – (a) any other person; and (b) any equipment or materials, that the authorized person considers necessary for the purpose for which the entry is required. (8) A reference in this Article to an emergency is a reference to a situation where the authorized person has reasonable cause to believe that – (a) circumstances exist which are likely to represent an imminent risk of serious harm to the health or safety of persons in or about the dwelling; and (b) immediate entry to the dwelling is necessary to verify the existence of those circumstances or to ascertain their cause and effect a remedy. 7 Risk assessment and enforcement action (1) The authorized person shall – (a) identify any prescribed hazards in a dwelling; (b) assess the level of risk posed by any prescribed hazard; and (c) take such action (if any) in accordance with paragraph (2) as the Minister considers appropriate, having regard to all the relevant circumstances including the cost of taking action to remove the hazard or reduce the risk posed by it to an acceptable level. (2) The authorized person may – (a) give, to the person having control of the dwelling or to the occupier or to both, hazard awareness advice in accordance with Article 8; or (b) subject to paragraph (3), give, to the person having control of the dwelling, a notice of a type described in Article 9. (3) A notice such as mentioned in paragraph (2)(b) must be accompanied by a statement of reasons for the decision to give the notice, which must include the reason why the authorized person decided to issue the particular notice in question rather than a notice of any other type described in Article 9. (4) The Minister may by Order prescribe circumstances in which the giving of a particular notice or type of notice is compulsory. 8 Hazard awareness advice Hazard awareness advice shall consist of information or advice as to a course of action which the authorized person considers will remove the hazard or reduce the risk posed by it to an acceptable level. 9 Notices (1) The types of notice that may be given under Article 7(2)(b) are – (a) an improvement notice requiring the person to whom it is addressed to take action, within such period (ending not earlier than the period within which an appeal against the notice can be brought under Article 11) as is specified in the notice – (i) to remove the hazard, or (ii) to reduce the risk posed by the hazard to an acceptable level; and (b) a prohibition notice stating that use of the dwelling (whether the whole or such part of it as may be specified in the notice) as living accommodation is prohibited, unless and until action is taken – (i) to remove the hazard, or (ii) to reduce the risk posed by the hazard to an acceptable level. (2) An improvement notice may be expressed to take effect only on the happening of a specified event. (3) A prohibition notice shall take effect – (a) at the end of the period specified in the notice; or (b) if the notice so declares, immediately. (4) A notice shall specify in relation to the hazard (or each of the hazards to which it relates) – (a) whether the authorized person considers he or she was obliged to issue it by virtue of a provision of an Order under Article 7(4) (and if so, the relevant provision) or did so as a matter of discretion; (b) the nature of the prescribed hazard; (c) the deficiency giving rise to the hazard; (d) the dwelling at which the hazard is present; (e) the date by which the remedial action required (if any) must be started or completed. (5) A notice shall also contain a statement describing the right of appeal under Article 11 and the period within which an appeal may be made. 10 Supplementary provisions relating to notices (1) A notice may include directions as to the action (if any) that might be taken to remove the hazard or reduce the risk posed by it to an acceptable level. (2) If directions are included in a notice they may be framed – (a) to any extent by reference to an approved code of practice approved by the Minister; and (b) so as to afford the recipient a choice between different types of remedial action. (3) If there has been a change in the circumstances that gave rise to a notice, an authorized person may vary or withdraw a notice as the person thinks fit, giving details of and reasons for any variation. (4) Where a notice has been given, but is not to take immediate effect – (a) it may be withdrawn at any time before the end of the period specified in the notice, under Article 9(1)(a) or (3)(a) as the case may be; and (b) the period so specified may be extended or further extended by an authorized person at any time when an appeal against the notice is not pending. (5) The withdrawal of a notice shall not affect the power of an authorized person to give a further notice in respect of the same hazard or in respect of other hazards in the same dwelling. (6) Despite the foregoing provisions of this Law, a notice shall not be given if – (a) in the opinion of the authorized person, it would be more appropriate for the Chief Officer to serve a dangerous building notice under Article 66 of the Planning and Building (Jersey) Law 2002 [2] or a land condition notice under Chapter 6 of Part 6 of that Law; or (b) such a notice as mentioned in sub-paragraph (a) has already been served by the Chief Officer. (7) In so far as it is required, planning and building permission in accordance with the Planning and Building (Jersey) Law 2002 [3] shall be taken to have been granted to undertake work in compliance with a notice. 11 Appeals against notices (1) A person to whom a notice is given under Article 7(2)(b) may, within 21 days from the date of its issue, or from the date of issue of any variation of the notice (whichever is the later), appeal to the Royal Court, on all or any of the following grounds, namely that – (a) the giving of a notice, or of a notice of the particular type which was in fact issued, was unreasonable in all the circumstances; (b) subject to paragraph (2), the notice given was defective in a material respect; (c) the notice given was not accompanied by a statement of reasons in accordance with Article 7(3); (d) the person was not the proper person to be served with such a notice; (e) the hazard or risk alleged in the notice does not in fact exist; (f) the requirements of or conditions in the notice exceed what is reasonably necessary to remove any alleged hazard or reduce any alleged risk; (g) without prejudice to the generality of sub-paragraph (f), any time period imposed by the notice for compliance with its requirements (including any directions under Article 10) falls short of the time which should reasonably be allowed for such compliance; (h) without prejudice to the generality of sub-paragraphs (b) or (f), the remedial action required by the notice to be taken does not fairly or reasonably relate to the alleged hazard or risk. (2) Where an appeal is brought on any ground stated in paragraph (1), the appellant shall not be entitled to allege, in any further or other proceedings instituted after the appeal, that the notice which is the subject of the appeal was not duly served. (3) On determining an appeal under this Article the Royal Court may either cancel or affirm the notice, or direct the Minister to substitute a different type of notice (whether under this Law or under the Planning and Building (Jersey) Law 2002 [4] ). (4) If the Royal Court affirms the notice, it may do so either in its original form or with such modification as the Royal Court may in the circumstances think fit. (5) The Royal Court may direct that the notice shall be suspended until the determination of the appeal. 12 Power of Minister to undertake work (1) If, by the end of the period of compliance specified in an improvement notice, a person has failed to undertake remedial action as required by the notice, then whether or not the person is convicted of an offence under Article 15, the Minister may – (a) take the necessary remedial action; and (b) recover from that person, as a debt due to the Minister, the expenses reasonably incurred by the Minister in doing so. (2) An authorized person may enter any part of the dwelling specified in the notice for the purposes of taking any action which the Minister may take under this Article. (3) The right of entry under paragraph (2) may be exercised at any reasonable time, but before exercising it the Minister must give, in accordance with paragraph (4), a notice of the intended exercise. (4) A notice under this Article must identify the improvement notice to which it relates and state – (a) the dwelling and hazard concerned; (b) that the Minister intends to enter the dwelling, for the purpose of taking remedial action; (c) the action which the Minister intends to take; and (d) the power under which the Minister is entitled to enter the dwelling and take the action. (5) The notice must be given to the person to whom the improvement notice was given, and a copy of the notice must be served on any other person who is an occupier of the dwelling. (6) The notice and any copy must be served sufficiently in advance of the intended entry as to give the recipients reasonable notice of the intended entry. (7) A copy of the notice may also be served on any other person having control of the dwelling. 13 Power to require production of documents (1) The Minister or an authorized person may – (a) for any purpose connected with the exercise of any function under this Part; or (b) for the purpose of investigating whether an offence has been committed under Part 4, issue a notice in accordance with paragraphs (2) and (3) to any relevant person. (2) A notice under this Article may require a relevant person to produce, to a person specified in the notice and no later than a date so specified, any documents – (a) which are specified or described in the notice, or within a class of document so specified or described; and (b) which the Minister reasonably believes to be within the relevant person’s custody or control. (3) The notice must contain information about the consequences of failing to comply with the notice. (4) Nothing in this Article confers power to require any person to produce a document which the person would be entitled to refuse to produce in proceedings in court on the grounds of legal professional privilege. (5) In this Article, “relevant person” means – (a) a person having control of a rented dwelling; and (b) a person occupying a rented dwelling. (6) Documents produced under this Article may be copied, and those copies may be retained, by the person to whom they are produced. 14 Power of Minister to undertake emergency remedial action (1) In any case where the Minister or an authorized person considers that – (a) a hazard in or about a rented dwelling involves an imminent risk of serious harm to the health or safety of any occupier of the dwelling or of any other residential premises; and (b) action (in this Article, “emergency remedial action”) is immediately necessary to remove the risk of serious harm, then, whether or not an improvement or prohibition notice has been issued in respect of the dwelling, the Minister may take such emergency remedial action in accordance with this Article. (2) An authorized person may enter any part of the dwelling specified in the notice for the purposes of taking any action which the Minister may take under this Article. (3) The right of entry under paragraph (2) may be exercised at any reasonable time, but before exercising it the Minister must issue and serve, in accordance with paragraphs (4) and (5), a notice (an “emergency entry notice”) of the intended exercise. (4) An emergency entry notice must state – (a) the dwelling and hazard concerned; (b) that the Minister intends to enter the dwelling, for the purpose of taking emergency remedial action; (c) the action which the Minister intends to take; and (d) the power under which the Minister is entitled to enter the dwelling and take the action. (5) An emergency entry notice must be given to every person who, to the Minister’s knowledge – (a) is an occupier of the dwelling in relation to which the Minister intends to take the emergency remedial action; (b) if the hazard in relation to which the Minister intends to take that action is in the common parts of a building, is an occupier of any living accommodation of that building; and (c) is any other person having control of the dwelling, but it may be regarded as sufficiently served for the purposes of this paragraph if it is affixed to some conspicuous part of the dwelling or building. (6) Within the period of 7 days beginning with the date on which the Minister intends to begin the emergency remedial action, the Minister must give a further notice (an “emergency action notice”), fulfilling the requirements in paragraph (7), and must serve the emergency action notice on the same persons as those on whom the emergency entry notice was served under paragraph (5). (7) An emergency action notice under paragraph (6) must state – (a) the nature of the hazard and the premises on which it exists; (b) the deficiency which, in the Minister’s opinion, gives rise to the hazard; (c) the premises in relation to which emergency remedial action is to be taken; (d) the nature and expected duration of the emergency remedial action; (e) the date on which the notice is issued, and (if different) the date on which the emergency remedial action is expected to begin; and (f) the power under which the emergency action notice is served and the action is taken. (8) The Minister may recover from the person having control of the premises in question, as a debt due to the Minister, expenses reasonably incurred by the Minister in taking emergency remedial action. part 4 criminal liability 15 Offences (1) A person who – (a) contravenes any requirement or prohibition imposed on the person by a notice (including any such notice as varied by an authorized person or modified on appeal); (b) intentionally obstructs the exercise or performance of any person’s powers or duties under this Law; or (c) pretends to be an authorized person, is guilty of an offence and liable to a fine of level 3 on the standard scale. (2) An offence under paragraph (1) may be charged by reference to a day or any longer period of time and a person may be convicted of a second offence or subsequent offences under paragraph (1) by reference to any period of time following the preceding conviction for such an offence. 16 Defences (1) A person charged with an offence under this Law who proves to the satisfaction of the court that that the offence was due to an act or default of some other person who committed it without his or her consent, connivance or wilful default, shall be acquitted of the offence. (2) Where paragraph (1) applies, the person to whose act or default the offence was attributable may be charged with and convicted of the offence by virtue of this paragraph. (3) In proceedings against a person for an offence under Article 15(1)(a) it shall be a defence to show that the person took all reasonable measures to secure compliance with the notice. 17 Offences by bodies corporate etc . (1) If an offence under this Law committed by a limited liability partnership, a separate limited partnership or a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of – (a) a person who is partner of the partnership, or a director, manager, secretary or other similar officer of the body corporate; or (b) any person purporting to act in any such capacity, the person shall also be guilty of the offence and liable in the same manner as the partnership or body corporate to the penalty provided for that offence. (2) If the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to acts and defaults of a member in connection with his or her functions of management as if the member were a director of the body corporate. PART 5 MISCELLANEOUS 18 Civil liability Without prejudice to any right of action that exists apart from this Law, and except as specified in this Law, nothing in this Law shall be construed as conferring a right of action in any civil proceedings. 19 Service of notices (1) Any notice required by this Law to be given to any person may be given to or served on the person in question – (a) by delivering it to the person; (b) by leaving it at the person’s proper address; (c) by sending it by post to the person at that address; or (d) by sending it to the person at that address by facsimile, electronic transmission or other similar means that produces a document containing the text of the communication in legible form or is capable of doing so. (2) Any such notice may – (a) in the case of a company incorporated in Jersey, be served by being delivered to its registered office; (b) in the case of a partnership, company incorporated outside Jersey or unincorporated association, be given to or served on the secretary or other similar officer of the partnership, company or association or any person who purports to act in any such capacity, by whatever name called, or on the person having the control or management of the business, as the case may be. (3) For the purposes of this Article and of Article 7 of the Interpretation (Jersey) Law 1954 [5] in its application to this Article, the proper address of any person to or on whom a notice is to be given or served by post shall be the person’s last known address or, where a notice is served as described in paragraph (2), the last known address of the registered office (if there is one) or main business address of the company, partnership, or unincorporated association. (4) If the person to or on whom any notice is to be given or served has notified the Minister of an address within Jersey, other than the person’s proper address within the meaning of paragraph (3), as the one at which the person or someone on the person’s behalf will accept documents, that address shall also be treated for the purposes of this Article and Article 7 of the Interpretation (Jersey) Law 1954 as the person’s proper address. 20 Orders (1) The Minister may by Order make provision for the purpose of carrying this Law into effect and in particular, but without prejudice to the generality of the foregoing, for prescribing any matter which may be prescribed under this Law. (2) An Order made under this Law may contain such transitional, consequential, incidental or supplementary provisions as the Minister considers are necessary or expedient. 21 Saving provision This Law shall have effect in addition to, and not in derogation from – (a) the Loi (1934) sur la Santé Publique [6] ; (b) the Fire Precautions (Jersey) Law 1977 [7] ; (c) the Statutory Nuisances (Jersey) Law 1999 [8] ; (d) the Planning and Building (Jersey) Law 2002 [9] ; and (e) any other enactment relating to public health and safety. 22 Citation and commencement This Law may be cited as the Public Health and Safety (Rented Dwellings) (Jersey) Law 2018 and shall come into force on such day as the States may by Act appoint. dr. m. egan Greffier of the States [1] chapter 05.450 [2] chapter 22.550 [3] chapter 22.550 [4] chapter 22.550 [5] chapter 15.360 [6] chapter 20.875 [7] chapter 23.150 [8] chapter 22.900 [9] chapter 22.550