The Energy Performance of Buildings (Scotland) Regulations 2008

Made: 16th September 2008

Laid before the Scottish Parliament: 18th September 2008

Coming into force: 4th January 2009

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so.

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Energy Performance of Buildings (Scotland) Regulations 2008 and come into force on 4th January 2009.

• (2) These Regulations extend to Scotland only.

Interpretation

2

• (1) In these Regulations–

• “approved organisation” has the meaning given in regulation 8(1);

• “asset rating” means a numerical indicator of the estimated amount of–energy consumed; andcarbon dioxide emitted,to meet the different needs associated with a standardised use of the building or building unit, such estimate being made in accordance with a method of calculation approved under regulation 7(a);

• “authorised recipient” means a person or body specified in Part 1 of Schedule 1;

• ...

• “dwelling” has the same meaning as regulation 2 of the Building (Scotland) Regulations 2004 ;

• “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000;

• “energy performance certificate” means a certificate which complies with regulation 6;

• “energy performance data” means information needed to produce an energy performance certificate or a recommendations report and for the purposes of regulations 11 to 14 includes the report reference number relating to that energy performance certificate;

• “energy performance indicator” means an indication of the energy efficiency or performance rating of a building or building unit calculated using the methodology approved in accordance with regulation 7 and expressed on a scale of A to G (with G representing the lowest rating);

• “enforcement authority” has the meaning given in regulation 15(1);

• “excluded building” means—a building owned, occupied or used from time to time by any of the naval, military or air forces of the Crown, the Security Service, the Secret Intelligence Service. the Government Communications Headquarters or the Royal Family; orused for the purpose of a prison or a young offenders institution (within the meaning of section 19(1)(b) of the Prisons (Scotland) Act 1989);

• “Framework Regulations” means the Green Deal Framework (Disclosure, Acknowledgement, Redress etc.) Regulations 2012;

• “green deal information” means the information relating to a green deal plan specified in Schedule 2;

• “green deal plan” has the same meaning as in section 1 of the Energy Act 2011;

• “green deal property” means a property in respect of which there is a green deal plan and payments are still to be made under that green deal plan;

• “green deal provider” means a person who is authorised by the Secretary of State in accordance with Part 2 of the Framework Regulations to act as a green deal provider;

• “green deal relevant person” means—a green deal provider; ora person who is authorised as a green deal assessor certification body in accordance with Part 2 of the Framework Regulations;

• “house” has the same meaning as in regulation 2 of the Building (Scotland) Regulations 2004;

• “local authority” means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994 ;

• “keeper” means the Scottish Ministers or a person appointed by the Scottish Ministers to keep a register on their behalf in accordance with regulation 10;

• “owner”, other than in regulation 9, means–in relation to a building or building unit which is to be sold, the seller; andin relation to a building or building unit which is to be let, the prospective landlord;

• “payment period” has the meaning given in regulation 2(1) of the Framework Regulations;

• “prospective buyer” and “prospective tenant” have the meaning given in regulation 3;

• “recommendations report” has the meaning given in regulation 6A;

• “reference value” means such current legal standard or benchmark which makes it possible to compare and assess the energy performance of the building or building unit; and

• “report reference number” means the unique reference under which the energy performance data relating to an energy performance certificate for a building or building unit is entered onto the register;

• ...

• (2) Unless otherwise defined in these Regulations, terms used in these Regulations have the same meaning as in Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings .

Meaning of prospective buyer or prospective tenant

3

A person becomes a prospective buyer or prospective tenant in relation to a building or building unit on the earliest of the dates when that person—

• (a) requests any information about the building or building unit from the owner for the purpose of deciding whether to buy or lease the building or building unit;

• (b) makes a request to view the building for the purpose of deciding whether to buy or lease the building or building unit; or

• (c) makes an offer, whether oral or written, to buy or lease the building or building unit.

Application of Regulations

4

These Regulations do not apply to—

• (a) temporary buildings with a planned time of use of two years or less, workshops and non-residential agricultural buildings with low energy demand; and

• (b) stand-alone buildings with a total useful floor area of less than 50m2 which are not dwellings.

Energy performance certificates on sale or rent

5

• (1) Where a building or building unit is to be sold or let the owner must make a copy of a valid energy performance certificate for the building or building unit and of the related recommendations report available for inspection free of charge to a prospective buyer or a prospective tenant.

• (2) Where a building or building unit is sold or let the owner must provide a copy of a valid energy performance certificate and of the related recommendations report free of charge to the buyer or tenant.

• (3) The energy performance certificate to be made available for inspection under paragraph (1) or provided under paragraph (2) is the most recent valid certificate obtained in respect of the building or building unit.

• (4) Any reference in this regulation to the letting of a building or building unit does not include the renewal of an existing lease with the same tenant.

• (5) This regulation does not apply at any time before the construction of a building or building unit has been completed.

Energy performance certificates

6

• (1) An energy performance certificate must–

• (a) express the asset rating of the building or building unit in a way approved by the Scottish Ministers under regulation 7(b);

• (b) include a reference value;

• (ba) include an energy performance indicator;

• (bb) include an indicator, expressed numerically, of primary energy use;

• (c) contain cost effective and technically feasible recommendations for improving the energy performance of the building or building unit including—

• (i) measures in connection with a major renovation of the building envelope or technical building systems; and

• (ii) measures for individual building elements independent of a major renovation of the building envelope or technical building systems;

• (ca) include a statement indicating that—

• (i) more detailed information on the cost effectiveness of the recommendations made in the energy performance certificate; and

• (ii) the steps to be taken to implement those recommendations,

are contained in the recommendations report;

• (d) include the following information–

• (i) the address of the building or building unit;

• (ii) where the certificate is issued by a qualified member of an approved organisation, the name of the approved organisation of which the person issuing the certificate is a member; and

• (iii) the date on which it was issued; and

• (e) be issued by a qualified member of an approved organisation for that category of building or building unit or produced from data entered on a register following a request for disclosure of that certificate made by virtue of regulation 12.

• (1A) Where the building or building unit to which the energy performance certificate relates is a green deal property the energy performance certificate must (in addition to the information specified in paragraph (1)(a) to (d)) contain a statement that green deal information relating to that building or building unit is contained in the recommendations report.

• (2) An energy performance certificate and the related recommendations report cease to be valid—

• (a) for the purposes of complying with the green deal disclosure obligations, on expiry of the period of one year from the date on which the document was issued or from the date on which it was produced from a register by virtue of regulation 12, as the case may be;

• (b) for all other purposes, on the expiry of a period of 10years from the date on which the document was issued.

• (3) An energy performance certificate must not contain any information or data from which a living individual (other than the person issuing it or that person's employer) can be identified.

• (4) Certification for a building unit may be based—

• (a) on the assessment of another representative building unit with the same energy-relevant characteristics in the same building; or

• (b) on a common certification of the whole building in which the building unit is located.

• (5) Paragraph (4)(b) does not apply to a unit that is a dwelling.

• (6) Certification for a house may be based on the assessment of another representative house where—

• (a) the representative house is of similar design, size and actual energy performance quality; and

• (b) the member of the approved organisation issuing the energy performance certificate has confirmed in writing that this is the case.

• (7) In this regulation, “green deal disclosure obligations” means the obligations to provide an energy performance certificate and recommendations report by virtue of section 12 of the Energy Act 2011 and Part 7 of the Framework Regulations.

Assessment of energy performance

7

The Scottish Ministers must approve—

• (a) a methodology of calculation of the energy performance of buildings or building units, including methods for calculating asset ratings of buildings or building units, based on the general framework set out in Annex1 to Directive 2010/31/EU of the European Parliament and of the Council; and

• (b) ways in which the energy performance of buildings or building units, as calculated in accordance with the methodology, must be expressed.

Approved organisations

8

• (1) An approved organisation is an organisation approved by the Scottish Ministers in accordance with this regulation as an organisation whose members may issue energy performance certificates.

• (2) The terms of approval of any organisation may be limited in relation to the categories of building or building unit for which its members may issue energy performance certificates.

• (3) Before approving an organisation the Scottish Ministers must be satisfied that the organisation will–

• (a) ensure that the preparation and issuing of energy performance certificates is carried out in a consistent, accurate and independent manner; and

• (b) ensure that members are fit and proper persons who are qualified by their education, training and experience to carry out the preparation and issuing of energy performance certificates.

Display of energy performance certificates

9

• (1) Where this paragraph applies, the owner of a building which is frequently visited by the public or, where the owner is not the occupier, the occupier must ensure that an energy performance certificate is displayed within the building in a prominent place clearly visible to visiting members of the public.

• (2) Paragraph (1) applies—

• (a) in the case of a building occupied by a public authority—

• (i) before 9th July 2015, where the floor area of the building is greater than 500 square metres; and

• (ii) on or after 9th July 2015, where the floor area of the building is greater than 250 square metres;

• (b) in the case of any other building where—

• (i) the floor area of the building is greater than 500 square metres; and

• (ii) an energy performance certificate has been issued in relation to that building.

• (3) For the purpose of this regulation—

• “owner” means a person who has right to the building whether or not that person has completed title, but if, in relation to the building more than one person comes within that description of owner, then “owner” means such person as has most recently acquired such right; and

• “building which is frequently visited by the public” means a building into which members of the public have an express or implied licence to enter and which is visited by members of the public on at least a weekly basis.

Registration of certificates

10

• (1) There must be one or more registers of energy performance data from which the following documents may be produced—

• (a) an energy performance certificate; and

• (b) a recommendations report.

• (2) Each register referred to in paragraph (1) shall be maintained by a keeper.

• (3) A register may be maintained for different purposes or for different classes of buildings or building units.

• (4) Where a member of an approved organisation issues any document referred to in paragraph (1)(a) or (b), that person must ensure that the energy performance data relating to that document is sent to the relevant register before the document is issued.

• (5) Any energy performance data entered onto a register—

• (a) must be registered under a unique reference; and

• (b) subject to paragraph (5A), must not be altered once registered.

• (5A) Green deal information entered on the register may be altered where that information is updated or further updated by the green deal provider in accordance with the Framework Regulations.

• (6) Any energy performance data entered onto a register must be kept on the register for a period of at least 10 years beginning on the date on which it is entered onto the register.

Disclosures generally

11

The keeper of a register may only disclose any—

• (a) energy performance data;

• (b) any document produced from that data; and

• (c) any information derived from that data,

if authorised by or required to do so by regulations 12 to 14A.

Disclosures to approved organisation

12

• (1) The keeper of a register may disclose—

• (a) the energy performance certificate; and

• (b) the recommendations report,

for a building or building unit to any person if the conditions in paragraph (2) are met.

• (2) The conditions are that—

• (a) a request is made by means of a website operated by the keeper; and

• (b) the request includes—

• (i) where the building or building unit to which the request relates is a green deal property, the report reference number for the energy performance data relating to the document; or

• (ii) where the building or building unit to which the request relates is not a green deal property—

• (aa) the full address (excluding the postcode) of the building or building unit;

• (bb) the full postcode of the building or building unit; or

• (cc) the report reference number for the energy performance data relating to the document.

Disclosures to enforcement authorities and/or the Scottish Ministers

13

• (1) The keeper of a register may disclose energy performance data to an authorised recipient if all of the conditions in paragraph (2) are met.

• (2) The conditions are that—

• (a) the authorised recipient has made a request for one or more specific descriptions of data to the keeper;

• (b) the request is made—

• (i) by means of a website operated by the keeper; or

• (ii) by electronic communication sent to an address or location specified by the keeper for the purpose of the receipt of such requests;

• (c) the data does not include any information revealing the location of an excluded building (or any information from which the location of such a building can be deduced);

• (ca) the data does not include any—

• (i) green deal information; or

• (ii) information revealing the report reference number relating to an energy performance certificate for a green deal property;

• (d) the disclosure is made subject to—

• (i) the condition that the data is to be used by the recipient solely for one or more of the purposes described in Part2 of Schedule 1; and

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) the data does not relate only to a particular building or building unit.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .