Here at Rowleys Commercial Energy Assessment Limited we provide Display Energy Certificates (DECs) and Advisory Reports throughout England, Wales and now Scotland.
DECs and Advisory Reports can be completed voluntarily on virtually any building in the UK. They can be used to demonstrate an organisation's commitment to improving energy efficiency whilst helping to reduce the running costs of the building. Organisations subject to the Energy Savings Opportunities Scheme (ESOS) can also use Display Energy Certificates and Advisory Reports to help them meet their requirements under these regulations.
In England & Wales, Display Energy Certificates and Advisory Reports are currently required for all buildings that are occupied by a public authority, have a floor area over 250m2 and are frequently visited by the public - see our FAQs for more information about these definitions as they are not as obvious as they might first seem! It is also the building occupier, not the owner, that is responsible for obtaining them.
In Scotland, Display Energy Certificates are required by building owners wishing to defer making the building improvements required by their Section 63 Action Plan. In this case an Advisory Report is not required by law but having one will potentially help reduce the running costs of the building.
Display Energy Certificates show how much energy is actually being used in a building. The rating shown is calculated from the energy use recorded over a twelve month period in comparison to other buildings being used for similar activities. Meanwhile, the Advisory Report provides recommendations to help you save energy. We all pay for the energy we use so implementing these measures can often help save significant sums from your energy bills.
For more information or a quotation please contact us now.
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 incomprehensable.
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 Certfificates (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.”
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. Many councils provided guidance on improving historic buildings with Westminster City Council providing some of the most extensive we have found. This includes a document titled “Energy Efficiency in Conservation Areas” which discusses improvements that can be made without damaging historic structures.
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.”
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.
Buildings within formally designated conservation areas are less likely to be subject to exemptions.
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. 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;
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:
- Are you listed in Schedule 1 of The Public Contracts Regulations 2015 (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.
- 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.
- 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.
- 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.
- 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.]
- 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.
Your assessor will require the following information about your building to complete the assessment:
The name and address of the building including the postcode;
Some details about how your building is used and maintained;
The Total Useable Floor Area (TUFA) or Gross Internal Area (GIA) of the building;
Metered energy consumption (gas & electricity) for a 12 month period*;
Measurement of any other energy consumption e.g. oil & solid fuel;
The published opening hours of the building;
Details relating to on-site renewables and low or zero carbon technologies;
Details of any surplus energy exported to the grid.
During the assessment process the assessor will also visit the building. During this visit the assessor will need to visit plant rooms, meters, air conditioning systems and occupied areas to gather evidence for their report. They will also take photographs of your building and the systems installed within it. These photos are only to show features of the building fabric, its layout and how energy is being used so the assessor will avoid including people or sensitive information wherever possible.
All information obtained will be securely stored and only used for the purpose of producing your Display Energy Certificate and Advisory Report. If you have any concerns please discuss these with the assessor who can also let you review photographs taken if required so that you can be reassured these are appropriate. It may also help to arrange for the assessor to visit the building outside normal opening hours when less people will be about.
* This information may come from your own meter readings or energy bills. The information supplied does not have to cover exactly 365 days but information for all fuels needs to cover more or less the same period. Further details can be obtained from the assessor if required.
Keeping Costs Down
Prior to conducting a site visit the assessor will request certain information about the building. You can help reduce the time taken, hence reducing the cost of the assessment, by ensuring the information you provide is accurate and that all the requested information is provided promptly.
In particular, providing the assessor with an acceptable method of confirming the floor area and layout of the building will save the assessor having to measure the building. Accurate scaled floor plans produced by an architect or surveyor annotated with the Gross Internal Area (GIA) are ideal.
Accurate and comprehensive energy data is also very important for an accurate assessment. Many organisations already report annual energy consumption over specific periods. If you have already collated this information for a particular period please discuss how this can be utilised to reduce the duplication of data collection with your assessor. Your assessor can also advise on easy methods of accurately collecting the required information for future assessments.
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.
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.
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 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.
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.