The Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2016

Made: 10th March 2016

Laid before Parliament: 15th March 2016

Coming into force in accordance with regulation 1(2)

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and by section 74 of the Energy Act 2011[^f00003].

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2016.

• (2) These regulations come into force on 6th April 2016, except as provided in paragraphs (3) and (4).

• (3) Regulations 18 and 19 come into force on 1st June 2016.

• (4) Regulations 3(b), 20 and 22 come into force on 1st October 2016.

• (5) These Regulations extend to England and Wales.

Amendment of the Energy Performance of Buildings (England and Wales) Regulations 2012

2

The Energy Performance of Buildings (England and Wales) Regulations 2012[^f00004] are amended in accordance with the following regulations.

Amendments to regulation 2

3

In regulation 2 (interpretation)—

• (a) for the definition “asset rating” substitute—

• “asset rating” means an energy performance indicator determined from the amount of energy estimated to meet the different needs associated with a standardised use of a building;

• (b) omit the definition “authorised recipient”;

• (c) in the definition “bulk access data” after “regulation 27(2)” insert “, (3) or (4B)”;

• (d) for the definition “display energy certificate” substitute—

• “display energy certificate” means a certificate which— complies with regulation 15; or in the case of a certificate issued in respect of an excluded building under regulation 15A, complies with regulation 15A(2);

• (e) after the definition “energy from renewable sources” insert the following definition—

• “energy performance” in relation to a building means the calculated or measured amount of energy needed to meet the energy demand associated with a typical use of the building, which includes, inter alia, energy used for heating, cooling, ventilation, hot water and lighting;

• (f) in the definition “energy performance certificate”—

• (i) omit “or” after paragraph (b),

• (ii) after paragraph (b) insert—

(ba) in the case of a certificate issued in respect of an excluded building under regulation 9A, complies with the requirements of regulation 9A(2) of these Regulations; or

, and

• (iii) in paragraph (c) before “complies” add “in the case of a certificate entered on the register before 6th April 2016”;

• (g) after the definition “energy performance certificate” insert the following definition—

• “excluded building” means a building owned, occupied or used by or for the purposes of— the Security Service, the Secret Intelligence Service or the Government Communications Headquarters; any of the armed forces; the Royal Family; a prison; a contracted out prison within the meaning of the Criminal Justice Act 1991[^f00005]; or a young offender institution;

• (h) for the definition “inspection report” substitute—

• “inspection report” means a report— issued by an energy assessor in accordance with regulation 19(1); or in the case of a report issued in respect of an excluded building, issued by an energy assessor in accordance with regulation 19A(2);

• (i) for the definition “operational rating” substitute—

• “operational rating” means an energy performance indicator determined from the amount of energy consumed during the occupation of a building over a period of time and the energy demand associated with a typical use of the building over that period;

• (j) in the definition “report reference number”—

• (i) after “energy performance certificate” insert “issued by an energy assessor under regulation 9”, and

• (ii) after “display energy certificate” insert “issued by an energy assessor under regulation 15”.

Amendment of regulation 4

4

For regulation 4(5)(a) (recommendation reports) substitute—

(a) “building element” means a controlled service or fitting or a thermal element within the meaning of those expressions in regulation 2(1) and (3) respectively of the Building Regulations 2010[^f00006].

Insertion of regulation 7A

5

After regulation 7 (energy performance certificates on marketing) insert—

(7A) (1) This regulation applies where— (a) a building is erected; or (b) a building is modified so that it has a greater or lesser number of parts designed or altered for separate use than it previously had, where the modification includes the provision or extension of any of the fixed services for heating, hot water, air conditioning or mechanical ventilation. (2) The person carrying out the building work must— (a) give an energy performance certificate for the building to the owner of the building; (b) give to the local authority notice to that effect; and (c) include in that notice the reference number under which the energy performance certificate has been registered in accordance with regulation 27(4), except in the case of an energy performance certificate issued under regulation 9A (energy performance certificates in respect of excluded buildings). (3) The energy performance certificate and notice must be given not later than five days after the building work has been completed.

Amendment of regulation 9

6

In regulation 9 (energy performance certificates)—

• (a) in paragraph (1)—

• (i) at the beginning insert “Subject to paragraph (6),”,

• (ii) for subparagraph (a) substitute—

(a) show the asset rating of the building, calculated and expressed in accordance with the methodology approved by the Secretary of State under regulation 24 of the Building Regulations 2010;

• (iii) in subparagraph (b) for “such as a current legal standard or benchmark” substitute “in order to make it possible to compare and assess the energy performance of the building”; and

• (b) after paragraph (5) add—

(6) This regulation does not apply to an energy performance certificate to which regulation 9A applies.

Insertion of regulation 9A

7

After regulation 9 (energy performance certificates) insert—

(9A) (1) This regulation applies where— (a) a building in relation to which an energy performance certificate is requested to be issued is an excluded building; and (b) the person who requests the energy performance certificate— (i) notifies the energy assessor (whether in writing or otherwise) that the building is an excluded building; and (ii) requests (whether in writing or otherwise) that the energy performance certificate is issued under this regulation. (2) An energy performance certificate issued under this regulation must— (a) comply with the requirements set out in subparagraphs (a) to (e) of regulation 9(1), other than the requirement in subparagraph (e)(i) (reference number under which data entered onto register); and (b) be valid for the purposes of this Part in accordance with paragraph (4). (3) An energy performance certificate must not contain any information or data (except the address of the building) from which a living individual (other than the energy assessor or energy assessor’s employer) can be identified. (4) An energy performance certificate issued under this regulation is only valid for the purposes of this Part if— (a) it was issued no more than 10 years before the date on which it is made available; and (b) no other energy performance certificate for the building has since been issued under this regulation or entered onto the register. (4) Where this regulation applies, the energy assessor must not enter any data relating to the building onto the register. (5) Certification for building units may be based— (a) for a non-residential building, on a common certification of the whole building for blocks with a common heating system; or (b) on the assessment of another representative building unit in the same block. (6) Certification for a building which consists of a single dwelling may be based on the assessment of another representative building of similar design and size with a similar actual energy performance quality if such correspondence is guaranteed by the energy assessor issuing the energy performance certificate.

Amendment of regulation 10

8

In regulation 10(1)(c) (display of energy performance certificates)—

• (a) in subparagraph (i) after “6” add “or 7A”; and

• (b) in subparagraph (ii) before “regulation” add “in the case of certificate entered on the register before 6th April 2016,”.

Amendment of regulation 11

9

• (1) In regulation 11 (statement of energy performance indicator)—

• (a) in the heading to the regulation for “indicator” substitute “rating”; and

• (b) in paragraphs (2) and (3) for “indicator” substitute “rating”.

Amendment of regulation 15

10

In regulation 15 (display energy certificates)—

• (a) number the existing provision as paragraph (1);

• (b) at the beginning insert “Subject to paragraph (2),”;

• (c) after “display energy certificate” insert “issued under this regulation”;

• (d) for subparagraph (a) substitute—

(a) subject to regulation 16, show the operational rating of the building, calculated and expressed in accordance with the methodology approved by the Secretary of State under regulation 24 of the Building Regulations 2010, relating to the period of 12 months ending no earlier than three months before the nominated date;

• (e) in subparagraph (b) for “expressed” substitute “shown”;

• (f) in subparagraph (c) for “such as a current legal standard or benchmark” substitute “in order to make it possible to compare and assess the energy performance of the building”; and

• (g) after paragraph (1) insert—

(2) This regulation does not apply to a display energy certificate issued under regulation 15A.

Insertion of regulation 15A

11

After regulation 15 (display energy certificates) insert—

(15A) (1) This regulation applies where— (a) a building in relation to which a display energy certificate is requested to be issued is an excluded building; and (b) the person who requests the display energy certificate— (i) notifies the energy assessor (whether in writing or otherwise) that the building is an excluded building; and (ii) requests (whether in writing or otherwise) that the display energy certificate is issued under this regulation. (2) A display energy certificate issued under this regulation must comply with the requirements of subparagraphs (a) to (e) of regulation 15(1), other than the requirement in paragraph (e)(i) (reference number under which data entered onto register). (3) Where this regulation applies, the energy assessor must not enter any data relating to the building onto the register.

Amendment of regulation 19

12

In regulation 19 (reports)—

• (a) at the beginning of paragraph (1) insert “Subject to paragraph (4),”; and

• (b) after paragraph (3) insert—

(4) This regulation does not apply to inspection reports issued under regulation 19A.

Insertion of regulation 19A

13

After regulation 19 (reports) insert—

(19A) (1) This regulation applies where— (a) a building in relation to which an inspection report is requested to be issued is an excluded building; and (b) the person who requests the inspection report— (i) notifies the energy assessor (whether in writing or otherwise) that the building is an excluded building; and (ii) requests (whether in writing or otherwise) that the inspection report is issued under this regulation. (2) Where an energy assessor undertakes an inspection of the system under regulation 18 he must make a written report of the inspection and give it to the relevant person as soon as practicable after completing the inspection. (3) An inspection report issued under this regulation must comply with the requirements of paragraphs (2) and (3) of regulation 19, other than the requirement in paragraph (3)(a) (reference number under which data entered onto register). (4) Where this regulation applies, the energy assessor must not enter any data relating to the building onto the register.

Amendment of regulation 22

14

In regulation 22(3) (accreditation schemes) for subparagraph (g) substitute—

(g) for requiring the sets of data from which there may be produced energy performance certificates (other than data relating to a certificate issued under regulation 9A), display energy certificates (other than data relating to a certificate issued under regulation 15A), recommendation reports (other than one to which regulation 27(7) applies) and inspection reports (other than data relating to a certificate issued under regulation 19A) prepared by members of the scheme to be entered onto the relevant register maintained by the Secretary of State pursuant to regulation 27; and

Amendment of regulation 27

15

In regulation 27 (registration of certificates etc)—

• (a) in paragraph (1)—

• (i) at the beginning insert “Subject to paragraph (6),”,

• (ii) omit “and” at the end of subparagraph (b),

• (iii) and after subparagraph (c) add—

; and (d) recommendation reports

• (b) after paragraph (4A) insert—

(4B) An energy assessor who issues a recommendation report (whether as part of an energy performance certificate under regulation 9(1)(d) or as a separate document) must ensure that the data that is required to be included in the report by regulation 4(2) (recommendation reports) is entered onto the relevant register before the assessor gives the report to the person who requested that it be issued.

; and

• (c) after paragraph (5) add—

(6) This regulation does not apply to— (a) an energy performance certificate issued under regulation 9A (energy performance certificates in respect of excluded buildings); (b) a display energy certificate issued under regulation 15A (display energy certificates in respect of excluded buildings); (c) an inspection report issued under regulation 19A (inspection reports in respect of excluded buildings); or (d) a recommendation report to which paragraph (7) applies. (7) This paragraph applies to a recommendation report which— (a) is included in an energy performance certificate issued under regulation 9A (energy performance certificates in respect of excluded buildings); (b) is issued in relation to a building together with a display energy certificate issued in relation to that building under regulation 15A (display energy certificates in respect of excluded buildings).

Amendment of regulation 28

16

In regulation 28 (fees for entering data onto the register)—

• (a) in paragraph (a), for “£1.27” substitute “£2.07”; and

• (b) in paragraph (b) for “£11.66” substitute “£12.82”.

Amendment of regulation 30

17

In regulation 30 (disclosure of general access data)—

• (a) in paragraph (2)—

• (i) at the end of subparagraph (b) omit the full stop and insert “; and”,

• (ii) for subparagraph (c) substitute—

(c) subject to paragraph (2ZA), no opt-out is in effect in respect of the data.

, and

• (iii) omit subparagraph (d);

• (b) after paragraph (2) insert—

(2ZA) The condition in paragraph (2)(c) does not apply where the request— (a) is for data that is required to be included in a display energy certificate; or (b) includes the report reference number of the valid energy performance certificate that relates to the building.

• (c) in paragraph (2A)—

• (i) in subparagraph (a) for “, (c) and (d)” substitute “and (c)”, and

• (ii) in subparagraph (b) for “, (c) and (d)” substitute “and (c)”.

• (d) in paragraph (3)—

• (i) at the end of subparagraph (a), omit “; and”, and

• (ii) omit subparagraph (b).

Insertion of regulation 30A

18

After regulation 30 (disclosure of general access data) insert—

(30A) (1) Subject to paragraph (2), the keeper of the register may publish on a website such items of bulk access data relating to any building appearing on the register as are specified in Schedule B1. (2) The keeper of the register may not publish any data under this regulation in relation to which an opt-out is in effect in accordance with regulation 30(3).

Insertion of Schedule B1

19

After Schedule A1 insert Schedule B1 as set out in the Schedule to these Regulations.

Revocation of regulation 31 and schedule 1

20

Regulation 31 (disclosure of bulk access data) and Schedule 1 are revoked.

Amendment of regulation 32

21

In regulation 32 (disclosure by keeper of the register)—

• (a) in paragraph (1) at the end of subparagraph (d) insert—

; or (e) to the Office for National Statistics for statistical or research purposes

• (b) in paragraph (2A), for the opening words preceding subparagraph (a) substitute—

(2A) Where the keeper of the register discloses general access data or bulk access data to the Secretary of State or to the Office for National Statistics for statistical or research purposes, such data may be published by the Secretary of State or the Office of National Statistics (as the case may be) if—

; and

• (c) in paragraph (8) omit subparagraph (a).

Revocation of regulation 33

22

Regulation 33 (fee for disclosure of bulk access data) and Schedule 2 are revoked.

Amendment of regulation 34

23

In regulation 34 (enforcement authorities)—

• (a) in paragraph (2)—

• (i) after “7(5)” insert “, 7A(2), 7A(3)”, and

• (ii) omit “, and the EPC construction duty”; and

• (b) omit paragraphs (3) to (5).

Amendment of regulation 34A

24

In regulation 34A (enforcement and local authority buildings)—

• (a) in paragraph (1)—

• (i) after “7(5)” insert “, 7A(2), 7A(3)”,

• (ii) omit “, or to the EPC construction duty”;

• (b) in paragraph (2)—

• (i) after “7(5)” insert “, 7A(2), 7A(3)”,

• (ii) omit “and the EPC construction duty”;

• (c) in paragraph 3(a)—

• (i) after “7(5)” insert “, 7A(2), 7A(3)”,

• (ii) omit “and the EPC construction duty”; and

• (iii) omit paragraph (8).

Amendment of regulation 35

25

In regulation 35 (power to require production of documents)—

• (a) in paragraph (1)—

• (i) after “6” insert “, 7A”, and

• (ii) omit “, or the EPC construction duty,”; and

• (b) omit paragraphs (7) to (9).

Amendment of regulation 36

26

In regulation 36 (penalty charge notices)—

• (a) in paragraph (1)—

• (i) after “7(5)” insert “, 7A(2), 7A(3)”, and

• (ii) omit “or the EPC construction duty,”; and

• (b) omit paragraphs (8) to (10).

Amendment of regulation 38

27

In regulation 38 (penalty amount)—

• (a) in paragraph (1)—

• (i) for “or 7(5), or of the EPC construction duty” substitute “7(5), 7A(2), or 7A(3)”, and

• (ii) omit paragraph (4).

SCHEDULE

Signed

Signed by authority of the Secretary of State for Communities and Local Government

James Wharton — Parliamentary Under Secretary of State — Department for Communities and Local Government — 10th March 2016

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Energy Performance of Buildings (England and Wales) Regulations 2012 (S.I. 2012/3118, as amended by S.I. 2013/10; S.I. 2013/181; S.I. 2013/603; S.I. 2014/880; S.I. 2015/609 and S.I. 2015/1681) (“the Principal Regulations”), which implement Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings (recast) (OJ No L 153, 18.6.2010, p. 13) (“the Directive”).

Regulation 5 consolidates regulation 29 (energy performance certificates) of the Building Regulations 2010 (S.I. 2010/2214, as amended by S.I. 2011/1515, S.I. 2011/3058, S.I. 2012/809, S.I. 2012/3119, S.I. 2013/10, S.I. 2013/181, S.I. 2013/1105, S.I. 2013/1959, S.I. 2014/579 and S.I. 2015/767), which is being revoked elsewhere, as new regulation 7A. This requires persons carrying out building work consisting of the erection of a building, or certain conversions of buildings, to give an energy certificate to the building owner, and notify the local authority to that effect. Regulations 4, 8 and 23 to 27 make amendments consequential upon regulation 5.

Regulations 7, 11, 13 and 15(c) make provision, in new regulations 9A, 15A and 19A and in amendments to regulation 27, in respect of energy performance certificates, display energy certificates, the recommendation reports accompanying those certificates, and the register relating to those documents kept under regulation 27 (“the register”). The new provisions are to the effect that none of those documents should be entered on the register if it is issued in respect of an excluded building, as defined in regulation 3(g), inserting that definition in regulation 2. Regulations 10(a), (b) and (g), 12 and 14 make amendments consequential upon regulations 7, 11, 13 and 15.

Regulation 15(a) and (b) amends regulation 27 to provide expressly that data required to be included in a recommendation report under regulation 4(2) must be entered on the register and that recommendation reports may be produced from the register. Regulation 16 amends fees for entering data onto the register.

Regulations 17 to 22 amend the provisions in Part 6 of the Principal Regulations for disclosure of data by the keeper of the register. The effect of the amendment to regulation 30 by regulation 17(a) and (b) is to allow general access data, the data shown on a certificate or report to be disclosed notwithstanding an opt-out by the owner or occupier of the building concerned in response to a request accompanied by the reference number under which a certificate has been registered.

Regulations 20, 22 and 3(b) revoke the existing provision in relation to bulk access data, the whole set of data entered onto the register, and regulations 18 and 19 replace it with a new regulation 30A and a new schedule allowing the keeper of the register to publish on a website the items of bulk access data specified in new Schedule B1 (as set out in the Schedule to these Regulations).

Regulation 21 amends regulation 32 to allow the keeper of the register to disclose data to the Office for National Statistics in addition to other named bodies and the Secretary of State, but only for statistical or research purposes, and allows the Secretary of State and the Office for National Statistics to republish data disclosed to them for those purposes.

Regulation 3 amends a number of definitions in regulation 2 in connection with the amendments described above. In addition, Regulations 3(a), (e) and (i), 6, 9 and 10(d) to (f) add and amend various provisions concerning energy performance certificates and display energy certificates to clarify their implementation of the requirements of the Directive.

A privacy impact assessment for the provisions relating to disclosure of information from the register is available with the explanatory memorandum for these Regulations at www.legislation.gov.uk/. A copy is also available from the Department for Communities and Local Government, 2 Marsham Street, London SW1P 4DF. A full impact assessment has not been produced for this instrument as no, or minimal, impact on the public, private or voluntary sectors is foreseen in relation to the other provisions of these Regulations.

Footnotes

[^f00001]: S.I. 2008/301.

[^f00002]: 1972 c.68. Section 2(2) was amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c.51) and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c.7).

[^f00003]: 2011 c.16.

[^f00004]: S.I. 2012/3118, as amended by S.I. 2013/10; S.I. 2013/181; S.I. 2013/603; S.I. 2014/880; S.I. 2015/609 and S.I. 2015/1681.

[^f00005]: 1991 c. 53

[^f00006]: S.I. 2010/2214. There are amendments, but none is relevant to this provision.