Key points

  • Enforcement penalties can now be applied for a failure to display an EPC when one is required, and/or a failure to include the requisite energy performance information in property advertisements
  • The information which has to be included in property advertisements has been clarified
  • The duration of recommendation reports for DECs has been amended

Background

The legislation governing energy performance certificates (EPCs), display energy certificates (DECs) and air-conditioning inspections was originally passed in England and Wales in 2007, but was replaced with effect from 9 January 2013 by the Energy Performance of Buildings (England and Wales) Regulations 2012 (the 2012 regulations).

In our January 2013 update, we noted that the 2012 regulations needed tidying up in a number of places. Some of this tidying up has now been effected via the Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2014 (the 2014 regulations). The principal areas affected are outlined below.

New enforcement powers

The 2012 regulations introduced two new duties:

  • a duty to display an EPC in certain types of building which are frequently visited by the public (NB this is different from the duty to display a DEC, which applies to public authorities only); and
  • a duty to include particular information about energy performance in property advertisements (this is discussed further below)

(in each case, see our January 2013 update for more details).

However, the 2012 regulations did not include any sanctions for non-compliance with these new duties. This has now been remedied and these obligations are subject to the enforcement regime in the 2012 regulations. 

The penalty for a failure to display an EPC when one is required is £500. The penalty for failure to include the requisite information in marketing material is £200.

Information to be included in marketing material

The 2012 Regulations required the "asset rating" of a property to be shown in any advertisement of the sale or rental in commercial media.  The asset rating was defined as a numerical indicator.  In practice however, most people would associate an EPC rating with a letter on the scale from A (indicating the most energy efficient properties) to G (the least efficient).

The 2014 regulations speak of an "energy performance indicator" rather than an asset rating, and make it clear that this refers to the letter rating as outlined above.  It is this indicator which must be included in property advertisements. This is how the regulations appear to have been interpreted by the property industry and accords with the government's own guidance on the subject issued at the time of the 2012 regulations.

Duration of recommendation reports for Display Energy Certificates

An organisation which is under a duty to display a DEC also has to have a valid recommendation report.  This report sets out changes which could be made to enable the building to be used in a more energy-efficient way.

In our January 2013 update we pointed out that there was an inconsistency between the government guidance and the 2012 regulations as to the length of time these reports were valid.  The legislation has now been amended to make it clear that a recommendation report issued on or after 9 January 2013 will be valid for:

  • seven years where the building is more than 1,000m2; or
  • 10 years for any other building.

The 2014 regulations came into force on 6 April 2014.