One wonders whether, when the Government published The Energy Performance of Buildings (England and Wales) Regulations 2012 which are in force from today (9 January 2013), the publishing department mistakenly put up a draft version of the regulations instead of the final version – so open to criticism is the published version.
Let us start with the most startling aspect of the 2012 Regulations: from today, the Government seems to have removed the requirement for a seller or landlord of a flat (or other part of a building, whether residential or commercial) to produce an EPC to its intending buyer or tenant. This is clearly not what was intended. Indeed the first “key point” in the Government’s guide to energy performance certificates for the construction, sale and let of dwellings states that: “A building requiring an EPC must have: a roof and walls; and use energy to condition the indoor environment. A building can be: the whole of a building; or part of a building where the part is designed or altered to be used separately.” But that is not what the new regulations say.
Under the original regulations – The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 – an EPC was required for the sale or the whole or part of a building. This was because the statutory definition of a building stated that “a reference to a building includes a reference to a part of building which has been designed or altered to be used separately.”
Under the new regulations, “building” means a roofed construction having walls, for which energy is used to condition the indoor climate. Separately, a “building unit” is defined to mean a section, floor or apartment within a building which is designed or altered to be used separately. However, Regulation 6 of the 2012 Regulations only requires an EPC where “a building” is to be sold or rented out. The sale of a flat is clearly the sale of a “building unit” not a building. It is stretching interpretation somewhat to say that a third floor flat in a ten storey block is a “roofed construction”. The flat (the building unit) has a ceiling, but it is the building that has a roof.
There are only fleeting references to “building units” in the 2012 regulations. For example in regulation 9(4) “Certification for building units on or after 9th January 2013 may be based (a) for a non-residential building, on a common certification of the whole building for blocks with a common heating system..” But this may be construed as applying where an EPC is commissioned voluntarily. There appears to be no duty in Regulation 6 to provide such a certificate on the sale or letting of a building unit in the first place. In Regulation 11, where a building unit “having a valid energy performance certificate” (or being part of a building having a valid energy performance certificate) is offered for sale or rent, the asset rating of the building expressed in the energy performance certificate must be stated in any advertisement in commercial media. But again this may be construed as applying where an EPC is commissioned voluntarily and does not itself create a duty to obtain or provide such a certificate on the sale or letting of a building unit.
Other anomalies exist. Regulation 10 requires an existing EPC (that is, one obtained pursuant to the 2012 Regulations, not the 2007 Regulations) to be exhibited: “In a building to which this regulation applies, the energy performance certificate must be valid, and must be displayed in a prominent place clearly visible to members of the public who visit the building.” But upon whom is this obligation imposed? Regulation 10(1) says: “This regulation applies to a building…” So, will the building be hauled up in court? (Actually, the point is a non-point since, oddly, while there is a duty to exhibit under this regulation, there is no penalty for breach, and therefore no powers of enforcement. The duty could be ignored).
Display energy certificates are now required for buildings with a total useful floor area of “over 500m²” where the building is occupied by a public authority and frequently visited by the public. From 9 July 2015, DECs are also required for such buildings with a total useful floor area of between 250m² and “less than 500m²”. So, if your building is bang on the 500m² mark, you escape from the duty. A classic case of the undistributed middle.
It is probably fair to say that we should expect some amending regulations any time soon…..