Key points

  • Additional amendments have been made to the regulations governing Energy Performance Certificates (EPCs), Display Energy Certificates (DECs) and air-conditioning reports
  • The key change is to fully open up access to the register on which certificates and reports are lodged
  • On 6 April 2012, other important changes came into force governing when an EPC must be commissioned, and the inclusion of the first page of an EPC with written particulars relating to a property

Background

In the November 2011 edition of Property Update, we reported on important changes to the regulations governing EPCs, DECs and air-conditioning inspection reports. These changes mean that, with effect from 6 April 2012:  

  • A seller or landlord must commission an EPC before putting a property on the market
  • The seller/landlord must use "all reasonable efforts" to secure that the EPC is then actually obtained within seven days of the property being put on the market, and in any event must obtain the EPC within 28 days of the property being put on the market
  • A copy of the first page of an EPC (once it has been obtained) must be attached to written particulars for the sale or letting of a property
  • Agents can be liable for a breach of the regulations, as well as property owners themselves
  • Air-conditioning inspection reports must be lodged on the central register.  

The 2012 Regulations

In March 2012, further regulations were made. These also came into force on 6 April 2012. The main changes are:  

Access to the register

EPCs, DECs and (from 6 April) air-conditioning reports have to be lodged on a central register, maintained by a company called Landmark on behalf of the government. According to government figures, the register contains details of more than 7 million EPCs, with that number increasing by about 1.2 million each year. However, access to the information held on that register is currently limited (see our alert on the Energy Act from November 2011, under the heading "Register of EPCs, DECs and air-conditioning inspection reports").  

Two changes are being implemented in relation to the register. The first is that, rather than simply containing a copy of the EPC, DEC or air-conditioning inspection report itself, the register will now contain the underlying data from which such a certificate or report was produced. The second change is that, from 22 April 2012, that data on the register is now far more accessible. It is capable of being accessed in two different ways - via a single (individual) request, or a bulk request.

An individual request, relating to a specific property, can be made free of charge via the Landmark register. Only data which is legally required to be included in an EPC, DEC or inspection report can be accessed in this way. This will include a property's energy efficiency rating, recommendations made by the energy assessor and details of any green deal finance attached to the property.

A bulk request can be made to obtain data for a large number of properties at a time. However, bulk requests can only be made by certain "authorised recipients". These include government departments, local authorities, universities, registered providers of social housing, environmental charities which meet certain criteria and green deal providers. Different "packages" of data are on offer for a fee, and a greater variety of data is available than can be obtained via an individual request. Data can only be used for certain purposes and the recipient will have to sign a licence regulating its use of the data. However, one of the authorised purposes will be promoting and marketing energy efficiency improvements that may be made pursuant to a green deal plan, and it is clear that the forthcoming introduction of the green deal has been a key driver behind opening up access to the register. The government has published further guidance on access by authorised recipients.

It is possible for a property owner to opt out of data relating to an EPC and/or air-conditioning report being made publicly available. This can be done via the Landmark register. Opt-out is not possible in relation to DEC data, because DECs have to be on public display in any event. In addition, certain buildings (e.g. those used by the intelligence services, or the Royal Family) are automatically excluded from public access.

Demolition

The regulations have been amended to clarify that an EPC does not have to be commissioned, and a copy of the first page of an EPC does not have to be included with written particulars, in relation to a commercial property which is to be demolished. To take advantage of this exemption however, planning consents must be in place for both the demolition and any proposed redevelopment. This means that in practice the exemption is unlikely to be available.

Withholding address from an Energy Performance Certificate

As originally amended, the regulations would have permitted a seller, landlord or their agent to remove the address of a property from a copy of an EPC included with written particulars, where the address did not itself appear within those particulars.

The government has now decided that only the keeper of the register on which all EPCs have to be lodged will be able to redact an address from an EPC. In addition, the address of a residential property (defined as a single dwelling, including ancillary land) cannot be redacted. The exemption is therefore intended to apply to commercial sales and lettings which require confidentiality.

In practical terms, property agents will, for a small fee, be able to obtain an electronic copy of the redacted EPC from Landmark, which can then be attached to online particulars. More information on this service can be obtained from EPC.Enquiry@communities.gsi.gov.uk.

One final point to bear in mind is that the exemption in the regulations only applies to the copy of the first page of the EPC which has to be attached to written particulars. The full copy EPC which is provided to an identified potential buyer pursuant to a different provision in the regulations must be complete and include the address.

Government guidance

To coincide with the changes made on 6 April, the government has published a number of policy updates and guidance documents. The guidance states, among other things:

  • That the requirement to commission an EPC before a property is put on the market, and to attach a copy of the first page of the EPC to written particulars, will only apply to properties put on the market on or after 6 April 2012 (including properties put back on the market on or after that date following a break in marketing). It is not clear however that the legislation as drafted has this effect. Where written particulars are given out after 6 April, it would be prudent to ensure that a copy of the first page of the EPC is attached - whenever the property was first marketed.
  • That the copy of the first page of the EPC that has to be included with written particulars does not need to be actual size - it can be reduced as long as it is still legible and meets other legal obligations such as those under the Equality Act 2010.The copy does not need to be in colour - black and white is acceptable. The guidance states that a Quick Response (QR) code would not be an acceptable way of meeting the requirement. On that basis, and despite a possible suggestion in the guidance to the contrary, it appears that a URL link to the EPC would not be acceptable either.
  • That the requirement to attach a copy of the first page of the EPC to written particulars only applies where written particulars are provided to a specific person who may be interested in buying or renting the building. The guidance also states that it is not necessary to attach a copy of the first page of the EPC to advertising material such as newspaper adverts or window cards. The guidance does however think that online particulars must attach a copy of the first page of an EPC, as must auction catalogues which meet the definition of written particulars.
  • The regulations do not in terms exempt "advertising" material from the obligation to include the first page of the EPC. They simply lay down a definition of "written particulars" (see our earlier alert). If this definition is met, it would therefore appear that the first page of the EPC ought to be attached in all cases. Further, the regulations have always provided that a copy of the (whole) EPC must be made available when written information is provided to a person who requests information about the building. It is suggested therefore that the guidance is wrong to make this distinction.
  • That the government will use information from the national register of EPCs and DECs to identify which buildings have air-conditioning systems, and from there which buildings do not have an air-conditioning inspection report (see our earlier alerts for the need to obtain these reports). It therefore appears that enforcement in this area may be stepped up.