FAQs

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Frequently Asked Questions

Our FAQ library has been designed to answer some of the most common questions we get asked.

Please remember that England, Northern Ireland, Scotland and Wales are all now developing their own regulations in this area.  We have tried to specifically identify where differences occur within the posts by individual answers may need to be read within the wider context of the information supplied on this site.

This site is written by energy professionals not lawyers.  Your are advised to seek expert legal advice where this is required.

 

 

Categories

FAQ: Air Conditioning Inspection

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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.

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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).

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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 conditionedLikely 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.

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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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

FAQ: Commercial EPC

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You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

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Put simply, no.

When the Energy Performance Certificate is issued it will come with an Recommendations Report.  This report will include some recommendations to help you save energy, reduce your energy costs and reduce your CO2 emissions.  It will also give you an idea of the typical cost of making these improvements and the reduction in emissions that is likely to be associated with each improvement.

However, these improvements are not mandatory and it is up to you to decide whether or not you want to make them.  You will want to consider how quickly the savings will pay for the improvements and what impact the changes will have on your property.  In some cases you may not even be permitted to carry out the necessary works for example, you may live in a conversation area and the changes may not be permitted.

In the future some buildings with very low ratings may have to have improvements carried out to improve their overall rating.  Even so, it will be up to the owners to decide which improvements they wish to make.  This is already the case in Scotland where some buildings now require a Section 63 Action Plan.

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A Non-Domestic Energy Performance Certificate (commonly called a Commercial EPC) is required when you build, rent or sell a non-residential property.  You must order an EPC for potential buyers and tenants before you market your property to sell or rent.

You must also obtain an EPC if there are changes to the number of parts used for separate occupation and these changes involve providing or extending fixed heating, air conditioning or mechanical ventilation systems.

An EPC may also be required to take advantage of certain schemes.  One common example is to claim feed-in tariff (FIT) payments.

Exemptions

Some buildings don’t need an EPC.  However, these regulations have been devolved and so different rules apply in different administrations (parts of the UK).  They are also linked to the respective building regulations and so some of the exemptions only apply in very specific circumstances.  For example, you might think a church or mosque would automatically be exempt as a place of worship but that is not always true.  You have to consider the way all parts of the building are used carefully and, whilst parts of the building might be exempt if they were separated, the building as a whole may not be.  If you are unsure you should contact experts for advice.

Currently, in England and Wales, exemptions are in place for buildings that are:

  • places of worship
  • temporary buildings that will be used for less than 2 years
  • stand-alone buildings with total useful floor space of less than 50m²
  • industrial sites, workshops and non-residential agricultural buildings that don’t use a lot of energy
  • due to be demolished by the seller or landlord and they have all the relevant planning and conservation consents
  • due to be demolished and the site redeveloped by the buyer or tenant where they are sold or rented out with vacant possession and the buyer or tenant has applied for planning permission to demolish it
  • some listed buildings – you should get advice from your local authority conservation officer if the work would alter the building’s character and read our FAQ “Are Listed Buildings Exempt?”

In Scotland different regulations apply and potential exemptions are more limited.  The exemptions currently in place are for:

  • temporary buildings with a planned time of use of two years or less
  • workshops and non residential agricultural buildings with low energy demand
  • stand-alone buildings with a total useful floor area of less than 50m² which are not dwellings.

Caution: Do not rely on an exemption without taking specialist advice.  Many of these exemptions have specific definitions which are not as obvious as they first seem and the consequences of getting it wrong can be significant!

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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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

FAQ: Commercial Legionella Risk Assessment

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Everyone is potentially at risk from Legionella bacteria and of developing Legionellosis.  Legionellosis is the collective term for illnesses caused by the Legionella bacteria.  Legionnaires’ disease is the most serious disease caused by exposure to Legionella bacteria and results in the lungs becoming infected by the bacteria.  Other conditions caused by the bacteria include Pontiac Fever and Lochgoilhead Fever.

Whilst everyone is at risk from Legionella, certain things make it more likely that you will experience a more severe form of the infection.  The National Health Service (NHS) advise that these factors include:

  • being 50 years of age or over – 235 (83%) of the 284 confirmed cases in 2013 involved people over 50 years of age
  • smoking, or having smoked heavily in the past (a recent study has shown that smoking cannabis may also increase your risk)
  • drinking alcohol heavily
  • about three-quarters have an underlying medical condition, such as diabeteskidney disease, or a pre-existing lung condition
  • having a weakened immune system – for example, people with HIV and AIDS or cancer

Babies and children can also be at higher risk from Legionella as they have immune systems that are still developing.

The initial symptoms of Legionnaires’ Disease are very similar to many other diseases.  They are also often mistaken for flu.  These symptoms can include:

  • mild headaches
  • muscle pain
  • high temperature (fever), usually 38C (100.4F) or above
  • chills
  • tiredness
  • changes to your mental state, such as confusion

As the disease develops the bacteria can begin to infect your lungs.  At this stage you may also experience the symptoms of pneumonia.  These symptoms can include:

  • a persistent cough – which is usually dry at first, but as the infection develops you may start coughing up phlegm or, rarely, blood
  • shortness of breath
  • chest pains

Unsurprisingly, the NHS advise that you see your GP as soon as possible if you develop the symptoms above.  Additionally they advise that you seek urgent medical attention if you have more severe symptoms, such as chest pain and breathing difficulties.

Legionnaires’ disease is a notifiable disease in the UK. This means that if a doctor diagnoses the condition, they must tell the local authority under The Health Protection (Notification) Regulations 2010.  The authority will try to identify the source of the outbreak and put in place any necessary precautionary measures.

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If you search the Internet you will find lots of different answers to this question quoting different time periods.  This may lead you to suspect some must be wrong.  However, to a degree they are probably all correct but there is actually no specific or defined validity period.  The important thing is to understand the legal background to a Legionella Risk Assessment and then you can understand how the validity will depend upon the exact details of your situation.

In the UK, a Legionella Risk Assessment is a special kind of Risk Assessment known as a COSHH Assessment.  COSHH stands for the Control of Substances Hazardous to Health.  The current rules are published in the Control of Substances Hazardous to Health (COSHH) Regulations 2002.  You can find out more in the Health & Safety Executive (HSE) publication INDG136 – Working with substances
hazardous to health.

The regulations require that a COSHH Assessment should be revisited regularly to ensure that it is kept up to date.  It is also the duty of the responsible person to determine the date of the first review and the length of time between successive reviews as part of the assessment process.  Both of these periods will depend on type of risk, the work, and the responsible person’s judgement on the likelihood of changes occurring.

The law requires that a COSHH assessment, including Legionella Risk Assessments, be reviewed immediately if:

  • There is any reason to suppose that the original assessment is no longer valid, e.g. evidence from the results of examining and testing engineering controls, reports from supervisors about defects in control systems; or
  • Any of the circumstances of the work should change significantly and especially one which may have affected people’s exposure to a hazardous substance

The HSE point out that the requirement is for a review of the assessment.  This does not mean that the whole assessment process will have to be repeated at each review.  The first purpose of review is to see if the existing assessment is still suitable and sufficient.  If it is, then you do not need to do any more.

Even if it appears that the assessment is no longer valid, it does not mean that the whole assessment has to be revised.  Only those parts that do not reflect the new situation need amending.

Whether or not there is any real change in the situation, there is an absolute requirement to review the situation on a regular basis.  Without this, there is a danger that gradual change over a period of time goes unnoticed and the assessment becomes unsuitable and insufficient by default.  It is generally accepted that this period should not exceed 12 months but may need to be shorter if there are high risks and can be extended if there is a stable situation and the risks identified are very low.

It should be noted that any Legionella Risk Assessment in place should be immediately reviewed if any of the following apply:

  • There are any changes to the water system or its use.  This can include the installation of new taps, boilers and the like.
  • There are changes to the use of the building in which the water system is installed.  For example, a dwelling may become an House of Multiple Occupation.  Alternatively, a rented property may be empty and out of use for a period of time.
  • There is availability of new information about risks or control measures.  This can include new guidance for specialist items like cooling towers, air conditioning systems, spa pools etc.
  • The results of checks indicate that control measures are no longer effective or there is a case of legionnaires’ disease / legionellosis associated with the system.  This could include visible algae growth, unpleasant smells, discolouration of the water or a build up of sludge in pipes or water tanks.
  • There are changes to key personnel.  This would include a change in the tenants.  New tenants will need to be informed of appropriate control measures they should and may be at higher or lower risk.  Their occupancy may also follow different patterns which can change the risks from Legionella in the building.
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Legionella is a scientific term used to describe a group bacteria that can cause serious illness.  The video below explains more:

FAQ: Commercial MEES Assessments

Kashflow - simple business accounting

You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

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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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

Kashflow - simple business accounting

Put simply, no.

When the Advisory Report is issued it will include some recommendations to help you save energy, reduce your energy costs and reduce your CO2 emissions.  It will also give you an idea of the typical cost of making these improvements and the reduction in emissions that is likely to be associated with each improvement.

However, these improvements are not mandatory and it is up to you to decide whether or not you want to make them.  You will want to consider how quickly the savings will pay for the improvements and what impact the changes will have on your organisation and property.

In the future some buildings with very low ratings may have to have improvements carried out to improve their overall rating.  Even so, it will be up to the owners to decide which improvements they wish to make.  This is already the case in Scotland where some buildings now require a Section 63 Action Plan.

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The key here is the frequency, not the number of visitors.  A small number of people visiting the building weekly would meet this definition. However, a large number visiting once a year (e.g. for an open day) would not.

However, it is important to note that visitors only have to visit part of the building.  They do not need to have access to all of it to be considered a visitor.  Someone visiting a reception area, however small, would be considered to be visiting the building.

Employees, residents of the building, suppliers, contractors or specially invited people (e.g. job applicants invited for interview) are not considered to be members of the public. However, students at an institution are considered to be members of the public.  Equally, residents in a complex visiting other buildings on the site may be considered to be members of the public.  In a healthcare setting, patients are considered to be members of the public.

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England, Wales & Northern Ireland

The validity of a Display Energy Certificate (DEC) and Advisory Report (AR) depend upon the floor area of the building.  For buildings with a floor area greater than 1000m2, the DEC is currently valid for one year and the AR for up to seven years.

For buildings with a floor area greater than 250m2 but less than 1000m2, both the DEC and AR are currently valid for up to ten years.

However, significant changes to the occupation of the building or its floor area may require a new DEC or AR.  As the DEC relates to the occupier not the building, a change in occupier will require a new DEC.

Scotland

In Scotland DECs are required annually for building deferring their Section 63 Action Plans and so all DECs are valid for one year.

There is no requirement to have an AR in Scotland and so a validity period is not relevant in this context.

Kashflow - simple business accounting

Unfortunately the current regulations in England & Wales provide no clear definition of the term “Public Authority”.  However, the regulations were intended to include central and local government, schools, colleges, academies, free schools, universities, hospitals, NHS funded centres and surgeries, libraries, publicly funded museums, emergency services, social services, publicly funded sports and leisure facilities and most other civic buildings.  As such, with the current format of service provision by charities, not-for-profits, community groups, agencies and arm’s length organisations, it is not correct just to assume the term is restricted to government departments and council facilities.

In the absence of a clear definition, it has become commonly accepted that the meaning of “public authority” in The Energy Performance of Buildings Directive (England & Wales) 2012 regulations is the same as the term “contracting authority” as defined in 2(1) of The Public Contracts Regulations 2015.  Additionally, a similar list of “public authorities” can be found in The Freedom of Information Act 2000.  This definition is further reflected in The Energy Savings Opportunity Scheme Regulations 2014 which ensures organisations are potentially subject to either mandatory Display Energy Certificates or Energy Savings Opportunities Scheme (ESOS) assessments but should not be simultaneously subject to both set of regulations.

The Public Contract Regulations 2015 state:

“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities, but does not include Her Majesty in her private capacity;

“bodies governed by public law” means bodies that have all of the following characteristics:—
(a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)they have legal personality; and
(c)they have any of the following characteristics:—

(i)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii)they are subject to management supervision by those authorities or bodies; or
(iii)they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;

Public Authority – Self Determination Questionnaire

If, as an organisation, you are unsure as to whether or not you are a “public authority” you should seek you own legal advice.  When considering if your not-for-profit or charity is subject to these regulations the key would normally be in deciding if you are a body “governed by public law”.  The following steps may help your trustees/directors to decide:

  1. Are you listed in Schedule 1 of The Public Contracts Regulations 2015 (click to view) or Schedule 1 of The Freedom of Information Act 2000 (click to view), a regional authority or a local authority (county, borough, district, town, parish councils etc.)?  If your organisation is one of these then you are a “public authority” and will require DECs on the premises you occupy if the floor area and public visitation requirements are also met.  If you are not listed you should continue to step 2 to see if you are subject to the regulations through the additional criteria.
  2. Do you have a legal personality for the purposes of the regulations?  In effect, are you a legal body other than an individual?  Typical examples could include limited companies (including charitable companies), limited liability partnerships (LLP), community interest companies (CIC), charitable incorporated organisations (CIO), co-operative societies (Co-op), community benefit societies (BenCom) and financial mutuals.  If your organisation is any of these you may be a “public authority” and should continue to step 3.  If not, you probably have no legal personality in this sense and so are not subject to mandatory DECs.
  3. Is your organisation established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character?  A traditional business exists to make wealth (money) for distribution to its owners, investors and shareholders.  In other words, it has industrial or commercial character and would not be considered a “public authority” hence you are not subject to mandatory DECs.  In contrast, public bodies in this sense exist to meet the general needs of society or of communities.  They often provide services like health, social care, education, child care and recreation etc on a not-for-profit basis.  They typically use any profits they make from business activities to reinvest in the provision of these services.  They may also have a legal “asset lock” preventing the distribution of any profits or assets to members or shareholders.  If you are a public body then you may be a “public authority” and should continue to step 4.
  4. Does the majority of your finance come from the State, regional or local authorities or other bodies governed by public law?  If the majority of your organisation’s funding comes from the government, regional authorities, local councils or other public bodies (likely to include grants from charities etc) then you are a “public authority” and will require DECs on the premises you occupy if the floor area and public visitation requirements are also met.  If not, continue to step 5.
  5. Are you subject to management supervision from the State (including central government departments), regional or local authorities or other bodies governed by public law?  A simple way of determining this is to consider if you are free to run your organisation as you wish or whether you have to account for decisions that are made or actions taken to another organisation.  For example, most organisations receiving public money have to report upon the activities funded directly or indirectly back to the funding organisation, i.e. they are subject to supervision to ensure the money is spent as intended.  Registered Charities are subject to the supervision of the Charity Commission which is part of the State.  Similarly NHS practices are subject to supervision from the Department of Health through NHS Trusts and schools, colleges and academies are subject to supervision by the Department of Education through OfSTED.  If you are subject to management supervision then you are a “public authority” and will require DECs on the premises you occupy if the floor area and public visitation requirements are also met.  If not, continue to step 6.  [NB: Educational establishments should remember that students are considered to be members of the public under these regulations.]
  6. Do you have an administrative, managerial or supervisory board with more than half its members appointed by the State (including central government departments), regional or local authorities or other bodies governed by public law?  If your organisation does then it is a “public authority” and will require DECs on the premises it occupies if the floor area and public visitation requirements are also met.  If not, you are probably not a “public authority” and so will not require mandatory DECs on the premises you occupy.  However, “public authorities” are exempted from ESOS and so you may be subject to the requirements of the Energy Savings Opportunities Scheme.
Kashflow - simple business accounting

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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

Kashflow - simple business accounting

For the purposes of Display Energy Certificates, a building must have a roof, walls and use energy to condition the indoor climate.  This is the case where the building has any of the following fixed services:

  • Heating;
  • Cooling; and/or
  • Mechanical ventilation (this means the supply of fresh air and extraction of stale air – not just an extraction fan).

It is not uncommon for a site to have multiple buildings or a large building built is multiple phases.  If two or more buildings on the same site are linked by a fully enclosed structure consisting of a roof and walls, even if the link is not itself conditioned, then the combined buildings can be considered a single building for DEC purposes providing they have not been designed or altered to be used separately (usually by separate occupiers).  This approach is particularly sensible when the different parts are serviced by the same common systems and where sufficient sub-metering is not in place.  However, they may still be treated separately which can be useful in identifying energy efficiency improvements and monitoring energy usage.

NB: Since February 2009 site based DECs and ARs no longer meet the requirements of the legislation.  All qualifying buildings on a site must now have their own Display Energy Certificate and Advisory Report.

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Advisory Reports (AR) provide information about the way energy is managed and used within a building.  They provide recommendations for improving energy efficiency which can help reduce energy bills if successfully implemented.  Even where they are not required, it is often beneficial to have the AR for a building completed or updated.  This is particularly true when the energy assessor has to complete a site visit to issue the DEC as the additional work for the assessor is limited and this should be reflected in the assessment price.

In England & Wales, a valid Advisory Report is legally required to be in place before a DEC is issued.  In reality, they are usually both added to the national register at the same time when required but they can be completed separately.  The Advisory Report must be for the same building and occupier as the DEC so they should both be accessible under the same entry on the register.  It is the responsibility of the energy assessor to check the register to ensure that the AR is in place before lodging the DEC.

In Scotland, Advisory Reports are voluntary but will be required if it is intended to use the DEC within the Energy Saving Opportunities Scheme (ESOS).

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Floor areas for energy assessments are based upon Gross Internal Area (GIA) as defined in the current RICS Code of Measuring Practice.  Further information can be obtained here.

In order to complete a Display Energy Certificate, the GIA of the building must be accurately determined.  The energy assessor is responsible for verifying any value provided and for ensuring that it is accurate.  The default fallback position is that the energy assessor will be required to measure the building to determine the GIA.

However, it is recognised that the buildings requiring DECs are often large and complex.  As such, it is likely that other professionals are involved in building management and a GIA for the building may be available from other means.  This can avoid the lengthy and costly process of the energy assessor measuring the entire building e.g. a large college or acute hospital.  Therefore, DEC assessors are authorised to accept the following sources of information providing they take appropriate sample site measurements to verify the figures used are reasonable.  The acceptable secondary sources are:

  1. Measurements from scaled drawings: – This method can be used where professionally produced scaled plans are available for the building.  It is most useful when measurement layers have been turned on.  Particular care must be taken to ensure that measurements shown are Gross and not Net of internal walls etc.
  2. Areas from a formal Asset Register or similar: – This is often the simplest method where a suitable document exists but the energy assessor must be able to demonstrate that this is a formal document that has been professionally produced.  Documents in electronic format are acceptable.  Particular care must be taken to ensure the figures used are clearly identifiable, accurate, current and Gross not Net.  It is not unusual for these registers not to be updated to reflect building changes or for inaccurate or Net figures to be input in error.
  3. Information from an Architect or Surveyor who has reason to know: – Where an Architect or Surveyor who is registered with an appropriate professional body has undertaken work relating to the building they may have established the GIA.  This value can be used with appropriate supporting evidence.  This is also the justification used to accept a GIA printed on professionally produced scaled drawings of a building.

Uniquely for DEC’s, it is sometimes acceptable to use alternative measures of floor areas for some specific types of building.  However, these exceptions are very limited and the software used to produce the DEC converts these values to GIA before calculating the building rating.  The conversion is very conservative and so the rating will nearly always be considerably worse if these values are used that if the GIA is used directly.  Additionally, the GIA is normally available when a suitable source of these values is provided and so using them is not advisable.

FAQ: Domestic EPC

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A Domestic Energy Performance Certificate (commonly called an EPC) contains information about a property’s energy use and typical energy costs.  It also provides recommendations about improvements that can be made to reduce energy use and save money.  An EPC gives a property an energy efficiency rating from A (most efficient) to G (least efficient) and is valid for 10 years.

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Put simply, no.

When the Energy Performance Certificate is issued it will include some recommendations to help you save energy, reduce your energy costs and reduce your CO2 emissions.  The certificate will also give you an idea of the typical cost of making these improvements and the savings you might see on your energy bills.

However, these improvements are not mandatory and it is up to you to decide whether or not you want to make them.  You will want to consider how quickly the savings will pay for the improvements and what impact the changes will have on your property.  In some cases you may not even be permitted to carry out the necessary works for example, you may live in a conversation area and the changes may not be permitted.

In the future some buildings with very low ratings may have to have improvements carried out to improve their overall rating.  Even so, it will be up to the owners to decide which improvements they wish to make.  From April 2018, landlords will not be permitted to rent out most properties in England and Wales with an F or G EPC rating to a new tenant.

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You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

Kashflow - simple business accounting

There are lots of reasons you may wish to check a Domestic EPC.  You might want to find out if you already have a valid EPC for your property or see what improvements you can make to save money on your energy bills.  You may have lost a paper copy of a certificate and need to obtain a replacement.

In the United Kingdom all EPC’s have to be lodged on central registers for each administration.  These registers are available online to search and download EPC reports in pdf format.  Each administration has its own register and you must comply with the terms and conditions for using these sites.  Typically you can search using the postcode and address or the Report Reference Number printed on the report or provided by the Energy Assessor.

England & Wales

In England and Wales the central register held by the Department for Communities and Local Government.

www.epcregister.com

Scotland

In Scotland all Domestic EPC’s have to be lodged on a central register held by the Energy Saving Trust.

www.scottishepcregister.org.uk

Northern Ireland

In Northern Ireland all Domestic EPC’s have to be lodged on a central register held by the Department of Finance and Personnel.

www.epbniregister.com

Kashflow - simple business accounting

A Domestic Energy Performance Certificate (commonly called an EPC) is required when you build, rent or sell a residential property.  You must order an EPC for potential buyers and tenants before you market your property to sell or rent.

An EPC may also be required to take advantage of certain schemes.  One common example is to claim feed-in tariff (FIT) payments.

In Scotland, you must also display the EPC somewhere in the property, e.g. in the meter cupboard or next to the boiler.

Exemptions

Some buildings don’t need an EPC however these regulations have been devolved and so different rules apply in different administrations.

Currently, in England and Wales, exemptions are in place for buildings that are:

  • temporary buildings that will be used for less than 2 years
  • stand-alone buildings with total useful floor space of less than 50m²
  • some buildings that are due to be demolished
  • holiday accommodation that’s rented out for less than 4 months a year or is let under a licence to occupy
  • some listed buildings – you should get advice from your local authority conservation officer if the work would alter the building’s character and read our FAQ “Are Listed Buildings Exempt?”
  • residential buildings intended to be used less than 4 months a year

In Scotland different regulations apply which are much more limited.  The exemptions currently in place are for:

  • temporary buildings with a planned time of use of two years or less

Caution: Do not rely on an exemption without taking specialist advice.  Many of these exemptions have specific definitions which are not as obvious as they first seem and the consequences of getting it wrong can be significant!

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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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

FAQ: Domestic Legionella Risk Assessment

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Everyone is potentially at risk from Legionella bacteria and of developing Legionellosis.  Legionellosis is the collective term for illnesses caused by the Legionella bacteria.  Legionnaires’ disease is the most serious disease caused by exposure to Legionella bacteria and results in the lungs becoming infected by the bacteria.  Other conditions caused by the bacteria include Pontiac Fever and Lochgoilhead Fever.

Whilst everyone is at risk from Legionella, certain things make it more likely that you will experience a more severe form of the infection.  The National Health Service (NHS) advise that these factors include:

  • being 50 years of age or over – 235 (83%) of the 284 confirmed cases in 2013 involved people over 50 years of age
  • smoking, or having smoked heavily in the past (a recent study has shown that smoking cannabis may also increase your risk)
  • drinking alcohol heavily
  • about three-quarters have an underlying medical condition, such as diabeteskidney disease, or a pre-existing lung condition
  • having a weakened immune system – for example, people with HIV and AIDS or cancer

Babies and children can also be at higher risk from Legionella as they have immune systems that are still developing.

The initial symptoms of Legionnaires’ Disease are very similar to many other diseases.  They are also often mistaken for flu.  These symptoms can include:

  • mild headaches
  • muscle pain
  • high temperature (fever), usually 38C (100.4F) or above
  • chills
  • tiredness
  • changes to your mental state, such as confusion

As the disease develops the bacteria can begin to infect your lungs.  At this stage you may also experience the symptoms of pneumonia.  These symptoms can include:

  • a persistent cough – which is usually dry at first, but as the infection develops you may start coughing up phlegm or, rarely, blood
  • shortness of breath
  • chest pains

Unsurprisingly, the NHS advise that you see your GP as soon as possible if you develop the symptoms above.  Additionally they advise that you seek urgent medical attention if you have more severe symptoms, such as chest pain and breathing difficulties.

Legionnaires’ disease is a notifiable disease in the UK. This means that if a doctor diagnoses the condition, they must tell the local authority under The Health Protection (Notification) Regulations 2010.  The authority will try to identify the source of the outbreak and put in place any necessary precautionary measures.

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If you search the Internet you will find lots of different answers to this question quoting different time periods.  This may lead you to suspect some must be wrong.  However, to a degree they are probably all correct but there is actually no specific or defined validity period.  The important thing is to understand the legal background to a Legionella Risk Assessment and then you can understand how the validity will depend upon the exact details of your situation.

In the UK, a Legionella Risk Assessment is a special kind of Risk Assessment known as a COSHH Assessment.  COSHH stands for the Control of Substances Hazardous to Health.  The current rules are published in the Control of Substances Hazardous to Health (COSHH) Regulations 2002.  You can find out more in the Health & Safety Executive (HSE) publication INDG136 – Working with substances
hazardous to health.

The regulations require that a COSHH Assessment should be revisited regularly to ensure that it is kept up to date.  It is also the duty of the responsible person to determine the date of the first review and the length of time between successive reviews as part of the assessment process.  Both of these periods will depend on type of risk, the work, and the responsible person’s judgement on the likelihood of changes occurring.

The law requires that a COSHH assessment, including Legionella Risk Assessments, be reviewed immediately if:

  • There is any reason to suppose that the original assessment is no longer valid, e.g. evidence from the results of examining and testing engineering controls, reports from supervisors about defects in control systems; or
  • Any of the circumstances of the work should change significantly and especially one which may have affected people’s exposure to a hazardous substance

The HSE point out that the requirement is for a review of the assessment.  This does not mean that the whole assessment process will have to be repeated at each review.  The first purpose of review is to see if the existing assessment is still suitable and sufficient.  If it is, then you do not need to do any more.

Even if it appears that the assessment is no longer valid, it does not mean that the whole assessment has to be revised.  Only those parts that do not reflect the new situation need amending.

Whether or not there is any real change in the situation, there is an absolute requirement to review the situation on a regular basis.  Without this, there is a danger that gradual change over a period of time goes unnoticed and the assessment becomes unsuitable and insufficient by default.  It is generally accepted that this period should not exceed 12 months but may need to be shorter if there are high risks and can be extended if there is a stable situation and the risks identified are very low.

It should be noted that any Legionella Risk Assessment in place should be immediately reviewed if any of the following apply:

  • There are any changes to the water system or its use.  This can include the installation of new taps, boilers and the like.
  • There are changes to the use of the building in which the water system is installed.  For example, a dwelling may become an House of Multiple Occupation.  Alternatively, a rented property may be empty and out of use for a period of time.
  • There is availability of new information about risks or control measures.  This can include new guidance for specialist items like cooling towers, air conditioning systems, spa pools etc.
  • The results of checks indicate that control measures are no longer effective or there is a case of legionnaires’ disease / legionellosis associated with the system.  This could include visible algae growth, unpleasant smells, discolouration of the water or a build up of sludge in pipes or water tanks.
  • There are changes to key personnel.  This would include a change in the tenants.  New tenants will need to be informed of appropriate control measures they should and may be at higher or lower risk.  Their occupancy may also follow different patterns which can change the risks from Legionella in the building.
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Legionella is a scientific term used to describe a group bacteria that can cause serious illness.  The video below explains more:

FAQ: Domestic MEES Assessments

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A Domestic Energy Performance Certificate (commonly called an EPC) contains information about a property’s energy use and typical energy costs.  It also provides recommendations about improvements that can be made to reduce energy use and save money.  An EPC gives a property an energy efficiency rating from A (most efficient) to G (least efficient) and is valid for 10 years.

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You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

Kashflow - simple business accounting

There are lots of reasons you may wish to check a Domestic EPC.  You might want to find out if you already have a valid EPC for your property or see what improvements you can make to save money on your energy bills.  You may have lost a paper copy of a certificate and need to obtain a replacement.

In the United Kingdom all EPC’s have to be lodged on central registers for each administration.  These registers are available online to search and download EPC reports in pdf format.  Each administration has its own register and you must comply with the terms and conditions for using these sites.  Typically you can search using the postcode and address or the Report Reference Number printed on the report or provided by the Energy Assessor.

England & Wales

In England and Wales the central register held by the Department for Communities and Local Government.

www.epcregister.com

Scotland

In Scotland all Domestic EPC’s have to be lodged on a central register held by the Energy Saving Trust.

www.scottishepcregister.org.uk

Northern Ireland

In Northern Ireland all Domestic EPC’s have to be lodged on a central register held by the Department of Finance and Personnel.

www.epbniregister.com

Kashflow - simple business accounting

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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

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Whilst the exemptions are relatively straight forward, applying them is more complex and can also involve understanding the separate regulations that apply to both Energy Performance Certificates and the Minimum Energy Efficiency Standards.  There are some organisations suggesting that landlords can easily avoid improving their buildings by claiming an exemption.  Our experience is that this is more difficult than it first appears and could easily cost more than improving the building to meet the standards.

Exempt buildings and tenancies

Not all buildings and tenancies fall within The Energy Efficiency (Private Rental Property) (England and Wales) Regulations 2015.  The MEES do not apply to:

  • Buildings that have not been legally required to have an EPC.  These can include some listed buildings (see our specific notes on this topic), temporary properties, some HMOs and holidays lets.  It will also apply if the property has not been built, sold, let or significantly altered since the introduction of EPCs.
  • Buildings without a valid EPC.  This would include buildings where the EPC is over ten years old when it is relied upon for the MEES regulations.
  • Buildings only with a voluntary EPC.  An EPC may have been lodged for any number of reasons.  EPCs completed for purposes other than the construction, sale, let or significant alteration of the building, including those lodged in a mistaken understanding that one was required, are known as voluntary EPCs.  A building is only subject to MEES if the EPC was legally required.  NB: There is currently no way to tell this from the EPC itself and so you will need to know the history of whether or not the building has legally required an EPC.
  • Buildings occupied solely under licence.  MEES only applies to buildings occupied under a “Relevant Tenancy”.  This includes an assured tenancy, a regulated tenancy and domestic agricultural tenancies.  If the occupier is present only under a licence to occupy the MEES requirements will not apply as there is no tenancy.
  • Social housing schemes.  The regulations apply only to privately rented properties.  Social housing is exempt from MEES regardless of its condition, quality, or EPC rating.

Exemptions from making improvements

There are a number of circumstances where an exemption or multiple exemptions from making improvements can be claimed.  Where an exemption of this type is claimed, it may be possible to continue to rent out a substandard property.  However, all exemptions of this nature must be lodged on the PRS Exemptions Register.

Additionally, it should be noted that specific supporting evidence is required before registering an exemption on the PRS Exemptions Register.  We can provide specialist advice in this area as part of our service but would always caution clients that meeting these requirements can cost significantly more than making improvements to meet the MEES.  This will obviously depend upon the building and the improvements required but changing a few lights will likely be cheaper than obtaining professional services to prove a property will be devalued for example.

Registered exemptions are also non-transferable.  At best they are valid for a maximum of five years but a change in tenant or sale to a new landlord will normally mean the process (and costs involved) will have to be repeated.  Only then can new exemptions be registered.  There are also significant penalties for making a false or misleading declaration on the PRS Exemptions Register.

The main exemptions from making an improvement are:

  • All relevant improvements have been made – Where all the improvements suggested have been made and the property still remains below the MEES.
  • Incompatible wall insulation improvements – Where independent experts conclude that it is inappropriate to make the wall insulation improvements suggested as they would have a negative impact on the structure or fabric of the property (or the building of which it is part).
  • Improvements which cannot be financed without cost to the landlord – Landlords are not required to make improvements where relevant “no cost” funding is not available.  However, they must attempt to take advantage of funding that is available and must be able to demonstrate this.  Improvements that do not meet the new “Golden Rule” for Green Deal funding may fall within this exemption but only if alternative funding is not available.
  • Devaluation of the property – You are not required to make an improvement where an independent surveyor determines that making it would devalue the property by more then 5% of its current market value.
  • Third Party Consent is refused – Where there is a sitting tenant you might complete the formal process required in offering to improve the property and consent may be withheld.  Equally, you may require consent from a superior landlord, a bank or building society or the local authority which may be reasonably refused.  However, you will have to demonstrate that you have applied for permission and have tried to accommodate any reasonable restrictions that they have placed upon you before you can claim this exemption.  This exemption can also be used where planning, conservation or other consents are required from statutory authorities providing it can be demonstrated that these have been applied for and refused.

Please note that every suggested improvement must be considered individually for the purposes of claiming exemptions.  It is therefore highly likely that, even where some improvements may be subject to exemptions, others will not.  In this situation, some improvements to the building will still need to be made.

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The tenancy types that the Minimum Energy Efficiency Standard (MEES) applies to are:

  • An assured tenancy (including an assured short hold tenancy) defined in the Housing Act 1988.
  • A regulated tenancy defined in the Rent Act 1977.
  • An agricultural tenancy as set out in the Energy Efficiency (Domestic Private Rented Property) Order 2015.

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 only apply to tenancies in the private rented sector.  They do not apply to properties owned by councils and social landlords.  Similarly, they do not apply to properties occupied under licence without a qualifying tenancy.

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HMOs are not excluded from the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015. The Regulations apply to all privately rented properties that are legally required to have an EPC, and where rooms are let on one of the qualifying types of tenancy (most likely assured tenancies). An HMO will be in scope where it meets these criteria.

However, individual rooms within HMOs are not required to have their own EPC, so a property which is an HMO will only have an EPC if one is required for the property as a whole (typically this will be if the property has been build, sold or rented as a single unit at any time in the past 10 years). If an HMO is legally required to have an EPC, and if it is let on one of the qualifying tenancy types, then it will be required to comply with the minimum level of energy efficiency.

NB:  Many HMOs are run on a commercial basis and as such are business premises.  Where this is the case they would normally require a non-domestic EPC like a hotel, hostel, care home or student accommodation block rather than a domestic EPC.

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Holiday lets, together with rooms in hotels and bed & breakfast accommodation are typically let under a licence to occupy, rather than a tenancy.  Therefore, this type of rental property is normally outside of the scope of the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 and not required to meet the MEES.

If there are any concerns about whether a property is occupied under a licence or a tenancy, and whether the landlord is subject to the Regulations, independent specialist legal advice should be sought.

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The guidance issued by the Department for Business, Energy & Industrial Strategy on this subject is very clear.  It states:

There are no specified materials or improvement measures; a landlord is free to do whatever they like with their property so long as the EPC rating can be raised to meet the Minimum Energy Efficiency Standard. The most assessable source of advice would be the recommended measures section on EPC for the property, but landlords can seek advice from other suitably qualified experts if they wish.

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WARNING:  Since setting the MEES, the Government has begun a consultation regarding the funding of improvements.  Instead of requiring “no cost” to the landlord they are now proposing a monetary cap on the cost of improvements required for each property – see note below.

A Landlord is only required to make improvements to meet the minimum standard if they can do so at no cost to themselves.  No cost funding can come from a range of sources including:

  • Green Deal Finance,
  • ECO help to heat funding,
  • Local Authorities home energy efficiency grants,
  • tenants,
  • any other source not repaid by the landlord,
  • any combination of the above.

For general advice and assistance on energy efficiency funding, landlords can contact the Energy Savings Advice Service on 0300 123 1234.  For scheme specific information landlords should:

  • Green Deal Finance: Search for a local Green Deal Provider (details can be found on the Green Deal Finance Company website www.gdfc.co.uk) or through the enquiry form on the GDFC website;
  • ECO help to heat programme: Contact the Energy Savings Advice Service on 0300 123 1234, (where appropriate the landlord may need to ask their tenant to contact ESAS themselves);
  • Local Authority funding: Contact their local Authorities for information on any home energy efficiency grants available.

 

Note: The New BEIS Consultation

On 19th December 2017 the Department of Business, Energy and Industrial Strategy (BEIS) launched a new consultation to amend the regulations.  The consultation is due to conclude on 13 March 2018, just a few weeks before the current regulations take effect on 1st April 2018.  The consultation states:

“We’re seeking views on the government’s proposal to amend the domestic Minimum Level of Energy Efficiency Regulations to introduce a capped landlord financial contribution element.

“This proposal is designed to future-proof the regulations and make them as effective as possible, while protecting landlords against excessive cost burdens. With a cost-cap, domestic landlords would only need to see investment in improvements to an EPC F or G rated property up to the value of that cap. The government’s preferred cap level is £2,500 per property. A range of additional, alternative, cap options are set out in the consultation and the associated consultation impact assessment.

“The consultation is intended for all interested parties including landlords and tenants, local government, energy suppliers, energy assessors, small and large businesses, consumers, and the general public.”

Further information can be found on the BEIS website on GOV.UK

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There is no specific requirement in the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 for a landlord to seek tenant consent to carry out works.  However, depending on the terms of the tenancy agreement between a particular tenant and landlord, the landlord may need to obtain tenant consent before undertaking certain works (energy efficiency related or otherwise).  Where this requirement already exists, the PRS Regulations recognise that consent should be obtained before work is undertaken.  This is considered entirely compatible with the requirement to allow a tenant quiet enjoyment of the property.

Between April 2018 and April 2020 landlords are only required to improve F or G rated properties before signing a new tenancy agreement. In their guidance the government states that they expect “many landlords will make improvements while a property is vacant between tenancies” and that therefore “tenant consent may not be a consideration”.

The guidance issued goes on to consider this area in more detail.

“One issue which landlords should consider is whether or not they have the right to carry out improvement works under the terms of an existing tenancy. Landlord rights of entry to undertake work on a property typically only extends to the carrying out of repairs or maintenance, rather than making ‘improvements’. As a majority of the measures landlords can install to meet the minimum standard will be considered improvements, a landlord may not have an automatic right of entry to install the measure or measures, and tenant consent may be necessary.

“On the other hand, if the tenancy agreement specifically gives the landlord right of entry to undertake ‘improvement works’, tenant consent may not be necessary. In all cases the wording of individual tenancies will dictate what is and is not permissible without consent.”

Additionally, landlords are reminded that they are under an obligation to make reasonable efforts to obtain third party consents and should not behave in such as manner as would discourage third party consent being granted.

“The Regulations require the landlord to make ‘reasonable efforts’ to obtain third party consent. Reasonable efforts may include attempts on a number of separate occasions and using a number of different available means of communication to secure agreement from, for example, a tenant or superior landlord, with evidence to show this had been done (in the case of planning consent refusal, evidence of a single application and subsequent refusal is likely to be sufficient evidence).

“Broadly speaking, it is thought that that it will not be reasonable for the landlord to comply with a condition which may reduce the landlord’s ability to let the property or if it involves unreasonable costs.”

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All exemptions claimed by landlords to improving domestic properties with an EPC rating at F or G must be registered on the PRS Exemptions Register.  This is an online process and does not cost anything to complete but you will need to have the correct supporting evidence available when you make your application.  In addition to registering exemptions, you can also search for details of exemptions that have already been registered.

To access the PRS Exemption Register visit https://prsregister.beis.gov.uk/

It is very important that you recognise that a single property may be subject to a number of different exemptions that apply to different improvements.  An exemption from one improvement does not exempt a landlord from making other relevant improvements.

Additionally, you will need to ensure that you have completed the correct processes and gathered sufficient evidence before registering an exemption.  There are significant penalties for registering a false exemption on the PRS Exemptions Register.

The Department for Business, Energy & Industrial Strategy (BEIS) have issued the guidance below regarding the minimum evidence required to support each type of exemption.

Exemptions Register Information Requirements
Information required for all exemptions:
  • The address of the relevant rental property;
  • which exemption to the Regulations the landlord is registering;
  • a copy of a valid Energy Performance Certificate for the property.
Additional Information and Evidence Related to Each Specific Exemption
Registering an exemption under the regulation 25(1)(b) exception – where a recommended measure is not a “relevant energy efficiency improvement” because the cost of purchasing and installing it cannot be wholly financed at no cost to the landlord (see Regulation 24(3)):
  • A description of why the landlord has been unable to obtain adequate ‘no cost’ funding.
  • Optionally, the landlord may also provide a copy of any evidence on which the landlord relies to demonstrate that they have been unable to access relevant ‘no cost’ funding to fully cover the cost of installing the recommended improvement or improvements.  This evidence of a landlords inability to access relevant ‘no cost’ funding may include a notification from a Green Deal provider advising that no Green Deal finance is available for a recommended measure, or that funding is only available to partially cover the costs.

Please Note:  The government is current consulting with a view to withdrawing this exemption and replacing it with a capped cost.

Registering an exemption under the regulation 25(1)(a) exception – where all relevant improvements have been made and the property remains below an E:
  • Details of any energy efficiency improvement recommended for the property in a relevant recommendation report (if separate to the relevant EPC), including a report prepared by a surveyor, or a Green Deal Advice Report;
  • Details, including date of installation, of all recommended energy efficiency improvements which have been made at the property in compliance with the Regulations.
Registering an exemption under the regulation 25(1)(b) exception – where the property is below an E and there are no relevant improvements which can be made:
  • A copy of the relevant report to demonstrate this (if separate to the relevant EPC).
Registering a wall insulation exemption under regulation 24(2):
  • A copy of the written opinion of a relevant expert stating that the property cannot be improved to an EPC E rating because a recommended wall insulation measure would have a negative impact on the property (or the building of which it is a part).
Registering a consent exemption under regulation 31(1):
  • A copy of any correspondence and/or relevant documentation demonstrating that consent for a relevant energy efficiency measure was required and sought, and that this consent was refused, or was granted subject to a condition that the landlord was not reasonably able to comply with.

Please Note:  Where the party who withheld consent was a tenant, the exemption will only remain valid until that tenant’s tenancy ends.  When that tenant leaves the property (or after five years, whichever is soonest) the landlord will need to try again to improve the EPC rating of the property, or register another exemption, if applicable.

Registering a devaluation exemption under regulation 32(1):
  • A copy of the report prepared by an independent RICS surveyor that provides evidence that the installation of relevant measures would devalue the property by more than 5%.
Registering an exemption upon recently becoming a landlord (regulation 33(1) or (3)):
  • The date on which they became the landlord for the property, and
  • the circumstances under which they became the landlord.

Please Note:  Where a person wishes to register an exemption upon recently becoming a landlord, the exemption will last for a period of six months.

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Complying with the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 and MEES can seem more than a little daunting.  However, the Department for Business, Energy & Industrial Strategy have simplified the process into a single flow chart to help.  Combined with expert advice and support, this chart will help guide landlords through the process required to comply with the regulations.

MEES Process Flow Chart
Source: Page 81, Guidance for landlords and Local Authorities on the minimum level of energy efficiency required to let domestic property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, BEIS (Oct 2017).

FAQ: Energy Efficiency

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Whether you are an individual or organisation, improving your energy efficiency has direct benefits for you.  This applies equally whether you are at work, at home, in leisure, or in education.

International Energy Agency - Benefits of Energy Efficiency
Source: The Many Benefits of Industrial Energy Efficiency, Interactive UNFCCC Dialogue Explored Policies for Reaping Benefits (11 APR 2017)

Put simply, more efficient energy use will mean you spend less on energy.  The money you invest should be returned through cheaper bills after the improvements are made.  Additionally, better energy efficiency can lead to more disposable income, allowing you to spend more on the things you really want to.  Improving your energy efficiency can also help to make you more independent, less vulnerable to supply failures and less exposed to price changes.  With a more comfortable home and workplace, there are also potential benefits for your health and well-being.

You can read more on the United Nations Framework Convention on Climate Change website in the article The Many Benefits of Industrial Energy Efficiency, Interactive UNFCCC Dialogue Explored Policies for Reaping Benefits (11 APR 2017)

FAQ: Energy Savings Opportunity Scheme (ESOS)

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ESOS applies to large undertakings in the UK and their corporate groups. It mainly affects businesses but can also apply to not-for-profit bodies and any other non public sector undertakings that are large enough to meet the qualification criteria if they are engaged in any “trade or business activities”.

A large undertaking is, on the phase qualification date:

  1. any organisation which has 250 or more employees; or
  2. any organisation which has fewer than 250 employees, but has an annual turnover exceeding €50 million and a balance sheet exceeding €43 million.

For the purposes of ESOS, the term employees includes employees and other persons engaged in the business of the organisation such as owner-managers and partners.  For a UK registered undertaking, this includes all employees contracted to the undertaking either in the UK or abroad.  For a non-UK registered undertaking with a UK establishment it includes all those contracted to the undertaking who are subject to income tax in the UK.  Please note, this is also the total number of employees regardless of the number of hours worked or contracted (not the number of full-time equivalent staff).

You must take part in ESOS if your undertaking is part of a corporate group which includes another UK undertaking or UK establishment which meets these criteria.  Where a corporate group participates in ESOS, unless otherwise agreed, the highest UK parent will act as a ‘responsible undertaking’ and be responsible for ensuring the group as a whole complies.  UK registered establishments of an overseas company will also need to take part in ESOS (regardless of their size) if any other part of their global corporate group activities in the UK meet the ESOS qualifying criteria.

Your organisation qualifies for the compliance period (phase) if, on the qualification date, it meets the ESOS definition of a large undertaking. Corporate groups qualify if at least one UK group member meets the ESOS definition of a large undertaking on this date.  All qualifying organisations must submit their completed report to The Environment Agency by the compliance date or they may be subject to substantial penalties.

PhaseCompliance PeriodQualification DateCompliance Date
16th Dec 2011 to 5th Dec 201531 Dec 20145th Dec 2015
26th Dec 2015 to 5th Dec 201931 Dec 20185th Dec 2019
36th Dec 2019 to 5th Dec 202331 Dec 20225th Dec 2023
46th Dec 2023 to 5th Dec 202731 Dec 20265th Dec 2027

If you are very close to the qualification threshold or have substantially increased or decreased in size in recent years you should read the full guidance to confirm if you qualify.  For more information on organisations that do not need to comply see section 1.2 of the full ESOS guidance.  Alternatively please feel free to contact us for a no obligation discussion with one of our ESOS Lead Assessors.

Public bodies are not included within the scope of ESOS as their energy efficiency is governed by a separate process involving regular Display Energy Certificates.  To find out more – click here.

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If you qualify for ESOS and your organisation is fully covered by an ISO 50001 accreditation, you don’t need to carry out an ESOS assessment.  You will already have looked at your environmental impact and how you can reduce your energy demand as part of the accreditation process. However, you will still need to notify the Environment Agency that you are compliant with ESOS.

If you qualify for ESOS, but your organisation is not fully covered by an ISO 50001 accreditation, you need to carry out an ESOS assessment. The assessment helps you work out what your organisation needs to do to comply with the ESOS regulations.

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For your ESOS assessment you will need to:

Appoint a lead assessor

You need to appoint a Lead Assessor to carry out and oversee or review your energy audits and overall ESOS assessment.  Lead Assessors can be employees or external contractors as long as they are members of an approved professional body register.

Calculate your total energy consumption

This is the energy used by assets held or activities carried out by your organisation or group. This includes the energy consumed by buildings, industrial processes and transport.

Identify your areas of significant energy consumption

This is the energy used by assets held, or activities carried out, by your organisation that account for at least 90% of your total energy consumption. Once you have completed this you need to:

  • Find out whether ISO 50001, Display Energy Certificates (DECs) or Green Deal Assessments (GDAs) cover any of your areas of significant energy consumption.
  • Identify whether ESOS compliant energy audits have been, or need to be, carried out for the areas of significant energy consumption not covered by ISO 50001, DECs or GDAs.
  • As long as 90% of your total energy consumption is covered, you can use a mix of approaches with some of your energy consumption covered by ISO 50001; some by DECs or GDAs and some by ESOS energy audits.  You will need to discuss your approach with your Lead Assessor.

Notify the Environment Agency

You need to submit your ESOS notification of compliance to the Environment Agency when you have undertaken an ESOS assessment and are compliant with your obligations.

The notification deadline was 5 December 2015 for the first cycle and every 4 years afterwards.  If you miss a deadline then your must notify the Environment Agency and submit your notification as soon as possible.

Keep records

You need to keep records of how you have complied with ESOS in an evidence pack. There is no set format for this but your Lead Assessor will be able to help you compile this.

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The Energy Savings Opportunity Scheme Regulations 2014 define a public body as those bodies which must adhere to the UK public contract regulations.  This definition also ensures organisations should not be simultaneously subject to both mandatory Display Energy Certificates and Energy Savings Opportunities Scheme (ESOS) assessments.

The Public Contract Regulations 2015 state:

“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities, but does not include Her Majesty in her private capacity;

“bodies governed by public law” means bodies that have all of the following characteristics:—
(a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)they have legal personality; and
(c)they have any of the following characteristics:—

(i)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii)they are subject to management supervision by those authorities or bodies; or
(iii)they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;

Scotland has additional public contracts regulations applying to organisations in Scotland.  These may include additional organisations not included in England and Wales.

Public Body – Self Determination Questionnaire

If, as an organisation, you are unsure as to whether or not you are a “public body” you should seek you own legal advice.  When considering if your not-for-profit or charity is subject to these regulations the key will normally be in deciding if you are a body “governed by public law”.  The following steps may help your trustees/directors to decide:

  1. Are you listed in Schedule 1 of The Public Contracts Regulations 2015 (click to view) or Schedule 1 of The Freedom of Information Act 2000 (click to view), covered by The Public Contracts (Scotland) Regulations 2015 (click to view) as amended, a regional authority or a local authority (county, borough, district, town, parish councils etc.)?  If your organisation is one of these then you are a “public body” and will require DECs on the premises you occupy if the floor area and public visitation requirements are also met and you will not be subject to ESOS.  If you are not listed you should continue to step 2.
  2. Do you have a legal personality for the purposes of the regulations?  In effect, are you a legal body other than an individual?  Typical examples could include limited companies (including charitable companies), limited liability partnerships (LLP), community interest companies (CIC), charitable incorporated organisations (CIO), co-operative societies (Co-op), community benefit societies (BenCom) and financial mutuals.  If your organisation is any of these you may be a “public body” and should continue to step 3.  If not, you probably have no legal personality in this sense.
  3. Is your organisation established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character?  A traditional business exists to make wealth (money) for distribution to its owners, investors and shareholders.  In other words, it has industrial or commercial character and would not be considered a “public body” hence you may be subject to ESOS.  In contrast, public bodies in this sense exist to meet the general needs of society or of communities.  They often provide services like health, social care, education, child care and recreation etc on a not-for-profit basis.  They typically use any profits they make from business activities to reinvest in the provision of these services.  They may also have a legal “asset lock” preventing the distribution of any profits or assets to members or shareholders.  If this applies you should continue to step 4.
  4. Does the majority of your finance come from the State, regional or local authorities or other bodies governed by public law?  If the majority of your organisation’s funding comes from the government, regional authorities, local councils or other public bodies (likely to include grants from charities etc) then you are a “public body” and will be subject to Display Energy Certificates not ESOS.  If not, continue to step 5.
  5. Are you subject to management supervision from the State (including central government departments), regional or local authorities or other bodies governed by public law?  A simple way of determining this is to consider if you are free to run your organisation as you wish or whether you have to account for decisions that are made or actions taken to another organisation.  For example, most organisations receiving public money have to report upon the activities funded directly or indirectly back to the funding organisation, i.e. they are subject to supervision to ensure the money is spent as intended.  Registered Charities are subject to the supervision of the Charity Commission which is part of the State.  Similarly NHS practices are subject to supervision from the Department of Health through NHS Trusts and schools, colleges and academies are subject to supervision by the Department of Education through OfSTED.  If you are subject to management supervision then you are a “public body” and will be subject to Display Energy Certificates not ESOS.  If not, continue to step 6.  [NB: Educational establishments should remember that students are considered to be members of the public under these regulations.]
  6. Do you have an administrative, managerial or supervisory board with more than half its members appointed by the State (including central government departments), regional or local authorities or other bodies governed by public law?  If your organisation does then it is a “public body” and will be subject to Display Energy Certificates not ESOS.  If not, you are probably not a “public body” and so will be subject to the requirements of the Energy Savings Opportunities Scheme (ESOS) if you are a large undertaking on the qualifying date.

FAQ: Green Deal

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You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

FAQ: SAP Calculations

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A SAP calculation works out the rating that is required in order to produce a Predicted Energy Assessment and an On-Construction Energy Performance Certificate for a new domestic building.

A SAP calculation indicates a score for the predicted annual energy cost for the new building based on:

  • The elements of structure;
  • The internal lighting;
  • The heating;
  • The hot water system;
  • Any renewable technologies installed in the home.

The higher the score the lower the running costs, with 100 representing zero energy cost.  Dwellings with a rating in excess of 100 are net exporters of energy.

The model used to produce a SAP calculation is largely location independent.  It is also based on a notional occupancy to overcome the different ways in which people use their homes.  As a result, SAP calculations allow the energy running costs of dwellings anywhere in the UK to be compared.

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SAP calculations are produced using a computer model.  They do not require the assessor to visit the site of the building.  As a result it is important that accurate and reliable information is submitted to the assessor.

The exact information required will vary from project to project and your assessor will discuss this with you.  The following is a list of the information typically required:

  • The full building address.
  • The correct postcode as confirmed by Royal Mail.
  • A site plan including the orientation of the dwelling(s).
  • Scaled plans of each storey of the building (normally at 1:100).
  • Elevations drawings for each elevation.
  • Sectional drawings of the dwelling.
  • Details of the principal heating and hot water system. This needs to include the make and model of boiler, details of heating emitters (e.g. radiators), hot water cylinder size (if applicable) and the system controls.
  • Details of any secondary heating system present.
  • Details of ventilation systems or extractor fans.
  • Details of the internal and external lighting.
  • Details of the construction of all the different floors to the property.  This needs to include the type and thicknesses of insulation and any other building products used.
  • Details of the construction of all the different external walls to the property.  This needs to include the type and thicknesses of insulation and other building products used.
  • Details of the construction of all the different roofs to the property.  This needs to include the type and thicknesses of insulation and other building products used.
  • Details of all the doors and windows.  This needs to include the sizes, type of frame, type of glazing, thickness of glazing and any low emissivity applications.
  • Details of any renewable technologies installed in the building.  These could include ground source heat pumps, air source heat pumps, solar water heating, photovoltaics (PV), wind turbines and/or hydrokinetic technologies.

If you are in the process of designing your building, the assessor will be able to help you decide the minimum standards for each system to ensure that your finished building meets the required energy performance standards.

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The accredited energy assessor uses the plans and drawings provided to prepare summary information for the building.  This includes calculating the total floor area of the dwelling; the floor area of the lounge or living room; the areas of the heat loss floors, heat loss walls and heat loss roofs; the dimensions of external windows and doors; and storey heights etc.

The assessor then calculates the performance of the thermal elements from the specifications provided. These are expressed as ‘U’ values; the rate at which heat passes through the fabric of the building.  The higher the ‘U’ value, the greater the rate of heat loss.

The assessor then inputs all this data into the approved software to produce the SAP calculation.  Data is entered relating to:

  • Type of dwelling;
  • Floors;
  • Walls;
  • Roofs;
  • Openings (windows, doors, roof lights);
  • Ventilation;
  • Main and secondary space heating;
  • Hot water generation;
  • Renewable technologies, including photovoltaic panels and solar water heating;
  • Energy efficient lighting.

The software determines whether the proposed dwelling will comply with the requirements of the Building Regulations with regards to the conservation of fuel and power.  The assessor is able to use the software to model different variations of the design if the initial specification doesn’t show compliance.  The assessor can then advise the designer of the shortfalls and recommend solutions as required.

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Once the As Designed (Draft) stage has been completed, the client, building designer and the assessor agree the finalised version of the design.  This may involve amendments to the initial design in order to achieve SAP compliance.

The data in the approved software is then updated to reflect this final design.  The software is then used to produce the reports that the client or designer need to submit to Building Control.  This will include a Predicted Energy Assessment (this provides a rating of energy performance based upon the specified design).

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During construction it may be necessary to make some amendments to the design.  Keeping your assessor informed during this process and seeking their advice prior to confirming any changes will help to ensure that your finished building will comply with the regulations.

Once construction is complete an air pressure test (sometimes called an air tightness test or air leakage test) may be required.  This test confirms the air tightness of the finished building to ensure it is energy efficient.  Once the test is complete you will need to provide details to your energy assessor.  If an air pressure test is not required you may still wish to obtain one.  If the result of a test is not available then the assessor will use a default value in the SAP calculations which is worse than most well constructed buildings will obtain.  Having a test conducted voluntarily is likely to improve your final rating and help demonstrate that you have complied with the regulations.

During this stage the assessor will edit the SAP calculation to reflect the results of the air pressure test and any variations to the specification.  The approved software is used to check that the completed dwelling still meets the requirements of the Building Regulations with regards to the conservation of fuel and power.  If for any reason the building does not meet the required standards, the assessor can advise remedial action to get your project back on track.

The assessor will also check to ensure that any new building is registered on the Government’s central database register of national property addresses.  If it is not, the assessor will arrange for the address record to be created.

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Once construction is complete and the final details have been confirmed, the assessor finalises the SAP calculation and creates the Energy Performance Certificate.  The EPC provides a rating of energy performance based upon the dwelling as it has been built. The EPC must, by law, be displayed in a new dwelling put up for sale on the open market.

In addition there are other documents that are required by Building Control such as the SAP worksheet report and the SAP data input report.  The assessor will provide all of these documents to the client to pass on to their Building Control officer to enable the completion to be signed off.  The exact process here depends upon the location of your building as the system is different is some parts of the UK.

FAQ: Section 63 Action Plan

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You may have heard about the Green Deal initiative or seen reference to it on your Energy Performance Certificate.  Green Deal was a government backed scheme to help fund improvements that would bring about savings to your energy bills.  Under the scheme the government would fund loans to help meet the initial cost of the improvements which you would then pay back as part of your future energy bills.  The idea was that the repayment costs would be offset by the savings in your bill so you would not have to find the extra money to pay for the improvement.  However, the government has stopped funding the Green Deal Finance Company which was set up to lend money to Green Deal providers to fund improvements under the scheme.

The scheme is now operating in a new format and is funding some projects.  A full relaunch is expected soon and Green Deal assessments are still available.  You can find out about the scheme by visiting the Green Deal Finance Company website.

However, Green Deal finance is not the only way you can fund improvements and other financial packages are available.  In addition to normal loans there are specialist financial packages and grants available.  Some of these take the form of more traditional loans and mortgages which could still be repaid from savings in the energy bill and may offer lower interest rates.  We make no recommendation in relation to any of the financial packages available and advise that you seek your own independent financial advice.

Other providers include:

Major banks and building societies

Ecology Building Society – Sustainable savings and mortgages

Portman Asset Finance – Finance for businesses to install renewable technologies

Carbon Trust Financing – General information, grants and loans

Salix Finance – Funding for the public sector

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The regulations apply from 1 September 2016 to buildings in Scotland.

Initially Section 63 Action Plans will only be required for larger buildings; those with a floor area of more than 1,000 m².  The requirement is triggered by either sale or by lease to a new tenant.

Generally, owners of such buildings are also required to provide a valid Energy Performance Certificate (EPC) in such situations  We would advise clients to ensure that the assessor whose services they contract is capable of producing both the EPC and a Section 63 Action Plan if required, otherwise additional expenses may be incurred.

Buildings that meet energy standards equivalent to those introduced by the 2002 building regulations in Scotland or are already improved via a Green Deal funding agreement are exempted from the regulations.

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Where the regulations introduced by Section 63 of The Climate Change (Scotland) Act 2009 apply, the owner of the building must undertake further assessment to produce an ‘Action Plan’.  This plan identifies targets for improvement of the carbon and energy performance of the building and sets out how the owner will meet these targets by making physical improvements to the property.

The requirements are discussed in detail in the document “Improving Energy Performance and Emissions in existing Non-Domestic Buildings– a guide for owners“.

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Once a Section 63 Action Plan is finalised, the building owner can chose to either make the improvements or to defer the improvements by reporting operational energy ratings via a Display Energy Certificate (DEC) on an annual basis.

If you choose to complete the improvements immediately you will have a period of 42 months (three and a half years) from the date of the Action Plan to complete the works.  This period allows for the processes involved in obtaining any necessary Building Warrant.  Once complete your action plan must be updated by an accredited Section 63 Assessor to confirm the work has been completed.

If you choose to defer you must continue to obtain a DEC annually until the the works are completed.  If you miss a renewal deadline or fail to obtain a DEC then the action plan must be completed within the initial 42 month period.  If you have already deferred 42 months you may immediately be in default and subject to a penalty charge notice from the local authority.

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Regulation 20 identifies Local Authorities as responsible for enforcing the Section 63 regulations. This matches the approach taken on the production of energy performance certificates (EPCs) under the Energy Performance of Buildings (Scotland) Regulations 2008.

Regulations 22 and 24 set out the penalties for failure to provide an Action Plan on sale or rental or failure to complete improvement works within the required timescale. This will result in issue of a penalty charge notice to the owner of the building.

The level of charge for each failure is £1,000 – the same as for failure to provide a valid EPC where one is required for a non-domestic building.

As is the case with the current Energy Performance of Buildings (Scotland) Regulations, building owners may offer defence, seek review or appeal such notices as set out in regulations 23, 25 and 26.

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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.

Whilst Historic England seem yet to update their specific guidance on this limited exemption, they do 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 a recent 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.

 

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