Are Listed Buildings exempt?

There is a lot of confusion about exemptions relating to listed buildings and buildings within a formally designated conservation area. Firstly, the exemptions that exist appear to vary between administrations in the UK and are different for different forms of assessment. Secondly, the supporting guidance, particularly in England & Wales, is regularly updated and can appear inconsistent or incomprehensible.

Air Conditioning Energy Assessments & Display Energy Certificates

Dealing first with these two assessments, the need for compliance is not affected by the historic nature or otherwise of the building. As such, no exemptions from the requirements for these assessments exist specifically for buildings that are listed or in formally designated conservation areas.

Listed buildings and those in formally designated conservation areas are treated as any other building is treated and require Air Conditioning Energy Assessments (ACEAs) and Display Energy Certificates (DECs) if they meet the other qualifying criteria.

Buildings in Scotland

The Scottish Government has not attempted to exempt listed buildings or buildings in formally designated conservation areas from their regulations for energy efficiency. Instead, they have taken an approach where an assessor is required to consider the impact of improvement measures and their appropriateness for the specific building in question. As such, no exemptions from the requirement for an Energy Performance Certificate exist specifically for buildings that are listed or in formally designated conservation areas. [Click here to see guidance]

Listed buildings and those in formally designated conservation areas in Scotland require Energy Performance Certificates (EPCs) and Section 63 Action Plans if they meet the other qualifying criteria.

Buildings in England & Wales

Put politely, the situation for buildings in England and Wales is about as clear as mud. The wording in the current regulations is taken directly from the European Directive and says “buildings officially protected as part of a designated environment or because of their special architectural or historical merit, in so far as compliance with certain minimum energy performance requirements would unacceptably alter their character or appearance.”

When these regulations were enacted on 9th January 2013, it was generally accepted that listed buildings were exempt from the requirement for an EPC for sale or let although it was acknowledged that they would still require an EPC in other circumstances (e.g. Green Deal). This belief was re-enforced by guidance published by Historic England which includes the statement “An Energy Performance Certificate (EPC) is a legal requirement when building, selling or renting a property. However, there are exemptions for certain types of building and since January 2013 listed buildings have been exempted from the need to have an EPC.” However, Historic England’s Terms and Conditions include the usual disclaimers regarding their interpretation of the law in that the position stated was just their interpretation and that they accept no liability for its accuracy. In the absence of enforcement action or legal precedents being set, much discussion has continued both in and out of the legal community with differing interpretations resulting.

Moving forward to the latest guidance to come from The Department of Business, Energy and Industrial Strategy, the UK Government Department which now has responsibility for EPCs. Issued in February 2017, this update is contained within the guidance for landlords and enforcement authorities on the minimum level of energy efficiency required to let non-domestic property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015. The advice, published in Chapter 1 on page 19 is shown below:

“There is a common misunderstanding relating to listed buildings and whether they are exempt from the requirement to obtain an EPC. Listed properties, and buildings within a conservation area, will not necessarily be exempt from the requirement to have a valid EPC and it will be up to the owner of a listed building to understand whether or not their property is required to have an EPC. Where a listed privately rented non-domestic property, or a property within a conservation area, is required to have an EPC, that property will be within scope of the minimum energy efficiency standards.

“As noted at 1.3.3 above, an EPC is not currently required for a listed property or building within a conservation area when it is sold or rented in so far as compliance with minimum energy performance requirements would unacceptably alter its character or appearance. Examples of energy performance measures which may alter character or appearance (or as a minimum are likely to require local authority planning permission to install on a listed building) include external solid wall insulation, replacement glazing, solar panels, or an external wall mounted air source heat pump. Where character or appearance would not be altered by compliance with energy performance requirements, an EPC may be legally required.

“If an owner or occupier of a listed building is unsure about whether their particular property is or is not required to have an EPC, appropriate advice should be sought at the earliest opportunity.”

Exactly the same information is contained within the equivalent publication for domestic properties which has been published more recently in October 2017. Changes in other guidance documents issued by MHCLG (formerly DCLG) and BEIS have also been made to reflect this. However, whilst they tend to reduce the previously special status given to listed buildings to a par with other designations including Conservation Areas, National Parks, Scheduled Monuments and protected parks and gardens, they do little to clarify exactly how far an exemption applies.

This guidance would seem to suggest that the UK Government believes the exemption for listed buildings is much more restricted than had previously become accepted. Indeed, it would appear to be more compatible with the Scottish Government’s interpretation that the exemption is solely from making improvements that would unacceptably alter the protected building’s character or appearance and not from the entirety of the process. Similarly, it would appear to reflect an expectation that reasonable improvements, particularly where these would improve the energy efficiency of a building whose performance is currently very poor, should be carried out.

This is not without merit or logic. At the current time, an EPC in itself does not mandate that any works actually be carried out. The recommendations are just that, recommendations. Therefore a view could be formed that having an EPC can never unacceptably alter the character or appearance of the building. As such it could be argued no building can claim exemption from having an EPC on these grounds alone. Additionally, the current requirements under the MEES include provision for exemptions from making specific improvements where required third party consent cannot be obtained. Hence, if Listed Building Consent cannot be obtained from the relevant authorities no unacceptable alteration to the character or appearance of the building is required and so again, there is no need to apply this exemption from having an EPC.

Many councils provide guidance on improving historic buildings with Westminster City Council providing some of the most extensive and practicable advice we have found. This includes a document titled “Energy Efficiency in Conservation Areas” which discusses improvements that can be made without damaging historic structures.

It may have taken some time but even Historic England have now updated their guidance to emphasise the limited nature of the exemption for both Listed Buildings and those in designated Conservation Areas. (NB: We cannot accept responsibility for the actual content of third party websites and it would appear that even this revised guidance contains some technical errors relating to EPCs). They also provide a wealth of information for those wishing to improve historic buildings without damaging their character and appearance. Indeed, they acknowledge that ensuring a building remains useful and occupied is often the best way of protecting it for the future. Additionally, some energy improvement measures can also improve fire safety and resilience in historic buildings. It should be remembered that it was never the intent of the protection schemes to freeze buildings in time but instead to ensure that they are managed with appropriate sympathy and conserved for the future.

The background to this issue is also explored in an article by The Residential Landlords Association. They make the following observation in relation to the exemption of Listed Buildings from EPCs:

“So in reality, in terms of an EPC, the caveat is meaningless. Therefore, a landlord cannot know if an EPC is needed before they have an EPC for the property”

This article continues to draw the following overall conclusion:

“Regrettably, we simply do not know the answer to whether or not an EPC is required for a listed building; nor whether landlords who have rented out listed buildings will have to comply with Minimum Energy Efficiency Standards (subject to any other available exemption, e.g. limiting the amount they have to spend); or whether you need an EPC for a listed building in order to be able to rely on regaining possession under Section 21 of the Housing Act 1988. What is clear is that if you have no EPC then you do not have to comply with Minimum Energy Efficiency Standards from 2018 onwards. You could be liable for a penalty for not having an EPC and equally you might not be able to get possession back relying on Section 21. This is a wholly unsatisfactory state of affairs which needs to be addressed by the Government.”

Interestingly, at a recent industry conference (Spring 2018), representatives of both MHCLG and BEIS confirmed that they believed Listed Buildings should have EPCs completed and that recommendations should be implemented wherever possible but with appropriate sympathy to the building as a whole. They were unaware of the conflicting guidance from Historic England which they accepted may be the source of a lot of the current confusion and undertook to attempt to ensure that Historic England updated their guidance to more accurately reflect the limitations of any exemptions which may be available.

Unfortunately, as energy assessors, we are not in a position to provide legal advice but present this information to help you form your own opinion. However, we would point out that there is currently nothing to stop an EPC being completed on a voluntary basis even when one is not required by law. This may have its own implications and so building owners and occupiers should seek their own legal advice but voluntary compliance may provide a suitable solution.

Some listed buildings in England & Wales may be exempt from some or all of the Energy Performance Certificate (EPC) and Minimum Energy Efficiency Standards (MEES) requirements. However, specific legal advice should be sought on a case by case basis. It is unlikely that an exemption can be demonstrated without first having an EPC completed to confirm the recommendations proposed.

Buildings within formally designated conservation areas are less likely to be subject to exemptions.

How do I work out the effective output of my system?

The effective output of an individual air conditioning unit or system may be given on the rating plate attached to the unit. It may also be stated in the operating and maintenance manual or from the manufacturer’s website. Alternatively, where the system is covered by a maintenance contract, the capacity should be known by the contractor and should be reported in the maintenance records they supply.

The guidelines below are an approximate indication of typical figures for installed capacity for various spaces and may help you determine whether your system is within the scope of the regulations. Cooling requirements depend on a wide range of circumstances, including the fabric, location and orientation of the building towards the sun, as well as the activities and the number of people in the building. Older systems are also likely to have higher rated outputs for a given floor area. Where more specific figures are needed these should be calculated taking account of the particular circumstances of the building and its use.

The guidelines below are for offices and shops. If it is not clear whether a building reaches the threshold the installed capacity of the system must be determined by appropriate inspection, calculation and enquiries. In other, more specialised, buildings, the wide range of factors which influence system capacity means that these systems should be determined by a suitably qualified person on a case by case basis if the information is not already available.

For larger systems, a central cooling system serving an office building of 2,000m² is likely to be 250kW rated output. Cooling systems serving meeting rooms which may be used by large numbers of people, such as council chambers, may exceed the 250kW threshold for lower floor areas.

Activity being air conditioned	Likely area requiring 12kW of cooling
Typical general office spaces.	200 m²
Office spaces with high levels of IT electrical equipment.	100 m²
Retail spaces with average levels of display lighting.	250 m²
Retail spaces with high levels of display lighting and illuminated cabinets.	150 m²

Please note that these values are intended as a rough guide only and you should check the details of your specific system. Offices, call centres, dealing floors and public spaces with high occupation densities (6m² per person and over) or similar, in addition to areas with high levels of IT equipment, communication or lighting loads may well fall within the scope of these regulations at smaller areas. The office spaces above assume an occupancy of 8 to 10 m² per person.

Who is responsible for obtaining the inspection and report?

The person who controls the operation of an air conditioning system must:

ensure an inspection has been done in accordance with the requirements and timetable of the regulations;
keep the most recent inspection report provided by an energy assessor; and
give any inspection report to any person taking over responsibilities with respect to the control of the air conditioning system.

If the control of an air conditioning system is passed to another person and that person has not been given an inspection report by the previous operator of the system, the system must be inspected within three months of the new operator of the system taking over such control.

The person who controls the operation of the system is the person who controls the technical functioning of the system, not someone who does no more than adjust the temperature or whose only responsibility is to adjust the controls. This will usually be the owner of the system even where day to day operation is contracted out to another person or organisation. However, where a tenant takes total responsibility for a building and its services (e.g. full repairing and insuring lease), then the tenant will control the system and have these responsibilities.

Further information is available in the Department for Communities and Local Government publication Improving the energy efficiency of our buildings – A guide to air conditioning inspections for buildings (December 2012, ISBN: 978-1-4098-3725-1).

What does an Air Conditioning Energy Inspection involve?

The inspection will examine the refrigeration and air moving equipment that are part of air conditioning systems and their controls. It will also examine any documentation that helps to understand the system, or indicates the extent to which the system has been maintained. The energy assessor is also required to estimate whether the system is suitably sized for the cooling loads in the treated spaces and to provide advice on ways in which the performance of the system might be improved.

Access will be required to equipment that may be located in plant rooms, or outside the building, including rooftops or other locations with limited provision for access. In all cases the building owner or manager must agree the means for safe access with the energy assessor. The energy assessor may need to be accompanied by the responsible building manager or maintenance agent at all times.

Some additional access is likely to be needed, for example to the inside of air handling units or ducts. This must be provided and supervised by the responsible building manager or maintenance agent with due regard to the safety of the energy assessor and to building occupants. This would require the system to be turned off to allow safe access, so arrangements may need to be made for this outside working hours to avoid disruption to business. Similarly, the energy assessor may need to access a sample of components, such as fan coil units, which may be hidden above suspended ceilings. Again, access should be provided by the building manager or maintenance agent.

The building owner or manager should not expect the air conditioning inspection to identify hazards or unsafe aspects of the installation, operation or maintenance of systems that should be identified and addressed by other arrangements, nor should they expect the energy assessor to fix any problem identified as part of the inspection.

Air conditioning inspections carried out for the purposes of the Energy Performance of Buildings Regulations are not specifically designed to assess the risks to public health, although the energy assessor is required to inform the building owner or manager, of a potential issue. The aim of the air conditioning inspection is to address energy performance, but the energy assessor is also required to confirm that the relevant person has undertaken the necessary checks to ensure there is no Legionella risk as required by the Health (Legionella) Regulations 2001.

Source: Improving the energy efficiency of our buildings – A guide to air conditioning inspections for buildings, December 2012, Department for Communities and Local Government, ISBN: 978-1-4098-3725-1.