Climate Change (Scotland) Act 2009: Section 63 Form of Regulations for non-domestic buildings Consultation Questions

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1 Climate Change (Scotland) Act 2009: Section 63 Form of Regulations for nondomestic buildings Consultation Questions Consultees are encouraged to submit their views in electronic format. Please feel free to provide your views and comments on this form. To mark a yes/no box, please double click on the relevant box and select checked. To offer commentary on aspects of the consultation not addressed by specific questions, please respond under question The form of the regulations Question 1: Do consultees have any comments on the principle of consolidating the Energy Performance of Buildings (Scotland) Regulations and amendments and amalgamating the S63 CCSA regulations within those regulations? The consolidation of the Regulations is welcomed. Please provide commentary in support of your view. 2. Separate parts within the regulations The draft regulations have been subdivided into 7 parts to enable distinctions to be made between the general requirements imposed in relation to assessment of energy performance and the requirements for improvement measures that relate only to existing nondomestic buildings for S63 CCSA. Question 2: Do consultees agree with having separate parts within the regulations to identify which areas apply to the Energy Performance of Buildings (Scotland) Regulations and amendments, to the S63 CCSA regulations and which apply to both? 3. Part 1 Preliminary 1 of 6

2 Question 3: Do consultees have any comments on Part 1? Regulation 2 sets out the buildings which are excluded from the Regulations. Consideration might also be given to excluding the types of transaction which are to be exempt from Part 3 of the Regulations. See our comments in response to question 5 on which transactions should be exempt Regulation 3 we believe that the definition of owner is incorrect in its application in some parts of the Regulations. The definition refers to a seller or a prospective landlord. It would appear to be correct in connection with the duty to exhibit an EPC and / or a copy of the action plan but it does not seem to fit where the action plan is to be implemented in terms of Regulation 13 or operational ratings are to be measured in terms of Regulation 14. It would be highly unlikely that in every case a seller will carry out the improvement works and a seller will not be in control of the property after the sale to carry out the operational ratings assessments. Should the definition for the purposes of Part 3 of the Regulations be amended to include the definition given in Regulation 16? 4. Part 2 Energy Performance Certificates This applies to S63 CCSA with the exception of Regulation 6 Advertisement for sale or let of a building or building unit. Question 4: Do consultees have any comments on Part 2? Part 2 of the Regulations requires owners and prospective landlords to exhibit an EPC to a prospective buyer or tenant. Will an owner whose building is subject to Part 3 of the Regulations be required to exhibit the original EPC, plus the action plan and any display energy certificate? 5. Part 3 Improvement Measures This part applies only to S63 CCSA Regulation 9(5) for exempt transaction is under development but currently covers: the lease of a building on a short term lease the sale or lease of a building or building unit at any time before the construction of that building or building unit has been completed or 2 of 6

3 the renewal of an existing lease with the same tenant. Other exemptions under consideration are buildings: to which non arms length transactions apply (e.g. change of organisation name, sale for investment (tenant in place), sale of ground lease, sales between husband and wife, a joint tenancy changes to a single occupancy, due to death of a spouse/family member or the property is inherited) have vacant possession until a sale or lease transaction occurs are sold purely for the purpose of demolition aligning with guidance for EPB(S)R however there would require being evidence (e.g. a staged demolition warrant with the heating system for the building rendered inoperable should be sufficient evidence of future intentions are the subject of successive short renewals (e.g. serviced office space) but it could be that once 12 weeks is reached the EPB and S63 regulations would apply to match up with the emergency accommodation item above. 3 of 6

4 Question 5: Do consultees have any comments on Part 3? With regards to Regulation 9, we would agree with the exemptions already mentioned in the draft regulations and would agree that all of those under consideration above should also be exempted from the Regulations and should include intra group company transactions. Consideration should also be given to extending the exemption for buildings sold for demolition to buildings which are being sold or leased for redevelopment or full refurbishment. An action plan prescribing improvement works would be irrelevant in such situations. With reference to a building with vacant possession until a sale or lease transaction occurs being exempt, will the Regulations make it clear that the action plan does not have to be implemented if the proposed sale or lease transaction does not occur? Many properties may attract potential buyers / tenants and owners may be required to obtain an action plan but the sale or lease may never complete. A seller or prospective landlord in that situation is unlikely to wish to proceed with the improvement works. At Regulation 10 paragraph 4, we would prefer that in connection with the obligation to register, the option "as soon as practicable after the action plan is prepared" is chosen to avoid any delays in exhibiting the action plan caused by hitches in the registration process It is not clear from the Regulations as drafted who would have to undertake the operational ratings regime in terms of Regulation 14. If the latter regime were to be adopted, what should be exhibited at the point of a future sale or lease of the building, the original energy performance certificate in the action plan or the latest display energy certificate or both? 6. Part 4 Public Buildings This part is not applicable to S63 CCSA. 7. Part 5 Approved Methodology And Approved Organisations This applies to both S63 CCSA and EPB(S) R Question 6: Do consultees have any comments on Part 5? 4 of 6

5 8. Part 6 Register Of Energy Performance Data Question 7: Do consultees have any comments on Part 6? 9. Part 7 Enforcement Question 8: Do consultees have any comments on Part 7? 10. Schedule 1 Disclosure of Data Question 9: Do consultees have any comments on Schedule 1? 11. Schedule 2 Improvement Works This part applies only to S63 CCSA. 5 of 6

6 Question 10: Do consultees have any comments on Schedule 2? 12. General Question 11: Do consultees have any other comments on the proposals? It would be of great assistance for those affected by the Regulations if comprehensive guidance is published, including a checklist of what is required and when. We understand that the size threshold which determines whether Part 3 will apply or not will be reduced over time. Given the fragile state of the property market at this point in time, we would suggest that any such reduction in the size threshold be delayed until there are consistent signs of recovery in the property market. If not, please outline your views. Back to start 6 of 6