In November 2011 we commented on the proposals for changes to the Energy Performance of Buildings (Scotland) Regulations 2008 which govern Energy Performance Certificates (EPCs).  Those changes have now been finalised and are embodied in two sets of amendment regulations: the Energy Performance of Buildings (Scotland) Amendment Regulations 2012 and the Energy Performance of Buildings (Scotland) Amendment (No.2) Regulations 2012.   

The majority of the new Regulations applicable to buildings in Scotland come into force on 1 October 2012, with further changes applicable from 9 January 2013. The key features of the original 2008 Regulations remain unchanged: EPCs will continue to be required on the sale, lease or construction for the same classes of properties and be valid for a period of up to ten years.   

There are three key changes to be aware of:

  • After 1 October 2012 a recommendations report must be provided along with the EPC;
  • After 9 January 2013 an energy performance indicator must be included in all advertisements; and 
  • Owners and occupiers of premises frequently visited by the public must ensure that an EPC is prominently displayed.

Much of the content of the 2012 Regulations provides clarification of existing arrangements.  

From 1 October 2012 property owners should be aware of these amendments to the EPC regime: 

  • The 2012 Regulations clarify that the regulations apply not only the sale or lease of a whole building but also to units within a building.  In fact, this reflects current practice where an EPC has generally been issued when the sale or lease has been for part of a building. 
  • EPCs must include an energy performance indicator, showing the energy efficiency or performance rating of a building  or building unit calculated using the methodology provided in the original Regulations and expressed on a scale of A to G (A being excellent and G being very poor). This is the same scale as has been used in EPCs to date and has been continued as it is seen to be easy to interpret. However, the certificate must now also contain cost effective and technically feasible recommendations for improving the energy performance of the building. 
  • Both prospective and actual tenants and purchasers must also now be provided with a separate recommendations report, which includes more detailed information on the cost effectiveness of the recommendations, and the steps to be taken to implement those recommendations. 
  • Clarification is also provided as to whom an EPC must be issued.  When a building or building unit is to be sold or let the owner must make available for inspection a free copy of a valid EPC to any prospective buyer or tenant.  The 2008 Regulations provide that to avoid the risk of a penalty notice, this must be done within nine days of request. The owner must also provide copies of the valid EPC and the related recommendations report free of charge to the eventual tenant or purchaser.  

The main changes coming into force from 9 January 2013 are:

  • Advertisements for the sale or let of a building or building unit must include the energy performance indicator for the premises (e.g. EPC –C).  Therefore, after 9 January 2013 it will be necessary for owners to obtain a valid EPC prior to marketing.
  • The 2012 Regulations also introduce a new regime for the display of EPCs where (i) the floor area of a building is greater than 500 square metres (ii) an EPC has been issued in relation to that building and (iii) the building is frequently visited by the public. 

In such cases the EPC must be displayed in a prominent place within the building that is clearly visible to visiting members of the public.  Previously only buildings occupied by a public authority or public service provider, and over 1000 square metres were required to display an EPC. There are more stringent provisions for the display of EPCs in buildings occupied by a public authority.  

A building which is "frequently visited by the public"” will mean any 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.   This will extend the requirement to display an EPC, where one has been obtained, to premises such as shops, theatres, cinemas and health centres

  • The 2012 Regulations also bring into force additional provisions for penalty charge notices to be issued when an owner neglects to include the energy performance indicator for the building in any advertisement for sale or let; and where the owner or occupier fails to display the EPC in their building, where there is a requirement to do so.   In both cases the penalty is a £1,000 fine for non-residential properties. 

It should be noted that different regulations apply to the provision and display of EPCs in England and Wales.  

To view the 2012 Regulations click here and here.