The Building Energy Rating (BER) system

The European Communities (Energy Performance of Buildings) Regulations 2006 provide for the transposition into Irish law of articles 5 (Alternative Energy Systems) and 7 (Building Energy Rating System) of the EU Energy Performance of Buildings Directive (2002/91/EC).

These regulations provide that every new dwelling and non-domestic building offered for sale or rent to any prospective purchaser or tenant, as of 1 January 2009, must have an energy rating certificate provided by a certified building energy rating (“BER”) assessor and be accompanied by an advisory report (which may recommend improvements to the energy performance of the building).

A BER certificate provides prospective purchasers or tenants of a building with standardised information concerning the energy rating of that building and provides them with an objective basis for comparison. Each dwelling is rated by an assessor from Sustainable Energy Ireland (“SEI”) (the body charged with implementing the new regime), which results in a label, not unlike the efficiency rating given to white goods such as freezers, fridges, etc. The BER is expressed in the form of performance bands, ‘A’ being the most energy efficient, to ‘G’, the least energy efficient.

The BER certificate must be accompanied by an advisory report produced by the BER assessor, which may recommend improvements to the energy performance of the building. However, there is no obligation on either a vendor or prospective purchaser to make the recommended improvements and there is no requirement that a building should achieve any particular level of energy rating.

What buildings do the regulations apply to?

New dwellings for which planning permission was applied for on or after 1 January 2007. A transitional BER exemption applies to a new building for which planning permission was applied for on or before 31 December 2006, provided that “substantial work” (meaning the structure of the external walls) has been completed by 30 June 2008.

New non-domestic buildings for which planning permission was applied for on or after 1 July 2008. A transitional BER exemption applies to new non-domestic buildings for which planning permission was applied for on or before 30 June 2008, provided that substantial work has been completed by 30 June 2010, except when such building is offered for a second or subsequent sale or letting.

Existing buildings of any class when offered for sale or letting on or after 1 January 2009.

Certain transitional exemptions are also contained within the regulations in respect of ‘planning schemes’ within the Custom House Docks Area.  It should be noted that buildings availing of the transitional exemptions could be caught by the requirement to produce a BER certificate on a subsequent sale.

Public Bodies

Public bodies are not exempted from the requirement to hold a BER certificate and regulation 8 states that public bodies which occupy a ‘large building’(1) on or after 1 January 2009 must secure and display a BER certificate in a prominent place clearly visible to the public. No sale or letting is required to trigger the obligation on such bodies to obtain and display a BER certificate in respect of buildings which exceed the threshold.

If a building is being sold from plans, a provisional BER certificate is required. However, such a provisional BER certificate lapses either once the building is completed or after the expiry of 24 months, whichever is sooner. Once the building is completed, a full BER certificate (and advisory report) is then required for any sale or letting.

Who should apply for a BER and how long is it valid?

The owner of the building, or their agent, is responsible for making the application for a BER assessment. A levy is payable to SEI in respect of each assessment submitted to it for the purposes of issuing a BER certificate and associated advisory report. The BER certificate and advisory report are maintained in electronic form on the BER register maintained by SEI.

Regulation 20 provides for the BER register to be a public register with certain ‘extracts from the BER register’ available for public inspection (the regulations do not specify the level of information to be made available to the public, however SEI have confirmed that only the BER certificate itself, as distinct from the advisory certificate, shall be available).

A BER certificate and advisory report are valid for 10 years from the date of issue. They are rendered invalid if there is any material change in the building which could affect its energy performance, including any significant deterioration in the building fabric , any extension of the building or a change in the heating system.

Who provides the BER?

Regulation 7(2) imposes an obligation on a ‘person who offers for sale or letting…’, a category of building to which the requirement to maintain a BER certificate applies, to produce the relevant BER certificate and advisory report. There is no apparent obligation on a purchaser of a building to have regard to the content of a BER certificate in making the purchase/letting, nor is there any requirement that such a purchaser seek or obtain a certificate from the vendor. The obligation is solely on the vendor to provide one.

Notwithstanding the above, it would be beneficial for the purchaser of a relevant building to discuss the subject of BER certificates at the time of sale/letting, particularly if the purchaser is likely to be reselling the building in the near future.

Penalties

A person (company or individual) who contravenes any requirement of the regulations commits an offence and failure to comply with the regulations renders the person concerned liable to prosecution. The regulations can also create personal liability for directors, managers and officers of a company which has been convicted of an offence. Offences under the regulations are punishable by a fine not exceeding €5,000 on summary conviction.  Where the offence consists of the obstruction of an authorised officer of SEI, the sentence may also include a term of imprisonment.

Further legislative clarifications required?

There are a number of instances throughout the regulations where further clarification would be welcome, for example, defining ‘significant deterioration of the building fabric’. In particular, the situation regarding apartment blocks/buildings is unclear, in that it is not obvious from the regulations if a single BER certificate will suffice in respect of the building as a whole or whether a separate certificate is required for each unit within the building. SEI have indicated that they believe that in such an instance a BER certificate will be required for the entire building, whilst a provisional BER certificate (on the basis that in most instances apartment units are sold from plans) will be required for each unit. SEI have indicated, however, that as the regulations are unclear in this regard, they welcome queries on a case by case basis for assessment. Unfortunately, until further legislative clarification is forthcoming, such an enquiry may be safest option for developers.

Footnotes

A large building is defined as a building with a ‘useful floor area’ in excess of 1,000 square metres. Rather unhelpfully, ‘useful floor area’ is not defined within the regulations or the directive.Provisional BER

Regrettably, ‘significant deterioration in the fabric of the building’ is not defined within the regulations or the directive.