If you were to ask your preferred search engine to find a response to the question – “does a listed building require an Energy Performance Certificate?”, most people would expect to find a straightforward yes or no answer.

As many in the legal and property sector will know however, this is not the case. What you will find are a plethora of articles and webpages setting out in various forms that “it depends”.

This piece isn’t intended to finally provide an answer to this question, but to pull up the curtain and explain why it is unclear. I hope that in doing so, it will also help to make the case for why the current illogical situation needs addressing.

Our story starts back in the halcyon days of 2002. The second Harry Potter film had just come out and Avril Lavigne’s groundbreaking ‘Let Go’ album topped the year’s album charts.

Meanwhile, in response to the Kyoto Protocol, the European Union were breaking ground of their own, approving the Energy Performance of Buildings Directive (EPBD).

This Directive (for the purists – articles 7, 9 and 10) introduced the EPC for the first time as a way of introducing a uniform way of measuring the energy performance of buildings across the EU.

You may remember that around this time they started to appear as one of the items contained in Home Information Packs and nobody really thought too much about them.

Fast forward to 2010 and the EU decided to recast the EPBD strengthening efforts to cut carbon from buildings across member states.

And here enters the protagonist of the piece.

In the revised 2010 EPBD, in the section creating minimum energy performance standards for new and existing buildings there is a clause that gives members states the opportunity to exempt certain buildings. This includes an exemption for:

“buildings officially protected as part of a designated environment or because of their special architectural or historical merit, in so far as compliance with certain minimum energy performance requirements would unacceptably alter their character or appearance.”

This clause is important because when it came time for the UK government to transpose the revised EPBD in The Energy Performance of Buildings (England and Wales) Regulations 2012 this exact phrase was copied into UK law when deciding which buildings needed an EPC and which didn’t.

Standing back for a moment, you can make a fairly good argument that the EU worded its exemption quite broadly, recognising that Member States all have their own approach to listing heritage buildings and streetscapes of architectural merit.

The intention, you would assume would be that if Member States chose to adopt this exemption, they would tweak the wording in their regulations to make it specific to their jurisdiction. In the UK context, listed buildings and properties in conservation areas.

Regrettably, the Coalition Government was at the time concerned about being seen to go over and above what any new regulatory requirements introduced by the EU, and in this era of Gold Plating paranoia, it was common practice for the exact wording of EU regulations to be picked up and directly transposed into UK law.

At the time, this wasn’t really a big deal as the EPC was in regulatory terms, still in the backwaters. The penalties for not providing them weren’t significant and nobody was really checking anyway.

This picture changed dramatically in 2015 with the introduction of what would become commonly known as the Minimum Energy Efficiency Standard (MEES) regulations – but technically are The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.

Very briefly – these regulations made it unlawful for domestic and commercial private rented properties to be let if they fell below an EPC E rating after a certain date.

When it came for policymakers working on the MEES regulations to consider how to define a domestic building, they referred back to our old friend The Energy Performance of Buildings (England and Wales) Regulations 2012 which contains that infamous EU exemption.

Suddenly, by layering additional regulations with quite serious financial penalties and investment decisions on top of this piece of poor drafting, it became very important to know what that phrase meant and whether it really did mean listed buildings or properties in conservation areas were exempt.

Regrettably, this is where our story ends. Government has not been minded yet to make this clear. So, in the words of Avril Lavigne – it’s complicated:

The current state of play is that an EPC is required unless they are exempt in so far as compliance with certain minimum energy performance requirements would unacceptably alter their character or appearance.

Whilst the purpose of this piece is to explain how this illogical situation arose, and there are pieces written by more learned legal minds charting a path through this set of contradictions, the short version is that the regulations essentially suggest you do need an EPC unless energy efficiency improvements would be likely to fall foul of conservation officers and planners.

Somewhat gallingly for those looking for clarity, the guidance for the Minimum Energy Efficiency Standards, originally published in 2017 and updated in 2020 state that “it will be up to the owner of a listed building to understand whether or not their building is required to have one.”

So, to learn what these works are that may lead to you not needing to have an EPC, you first need to get an EPC, which contains a relatively bespoke list of recommended energy efficiency recommendations for your property. Based on that list, you would then judge whether they would be appropriate for the building.

Simply having an EPC or not should be a yes or no question for all buildings regardless of their protected status

Obviously, this is a nonsense situation and a product of poor regulation. Simply having an EPC or not should be a yes or no question for all buildings regardless of their protected status.

It is only when one thinks about regulating minimum energy efficiency standards for buildings that caveats should emerge to prevent unnecessary or damaging works from being carried out. And, in fairness to the government, these exemptions do exist in the MEES regulations.

Rather than spending time and ink on this issue, many of us, both in the sector and in the public sector would prefer to use our energy debating whether the EPC and its underpinning methodology is the best tool for driving improvements to the sustainability of the historic built environment.

Sorting this EPC ambiguity out clearly isn’t a nationally urgent problem, but it is an example of what the industry means when it calls for certainty from government. Clear regulation is essential if government expects businesses and consumers to invest and respond to its policies.

Quotes

• The domestic private rented property minimum standard (publishing.service.gov.uk)
• Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (europa.eu)
• legislation.gov.uk
• legislation.gov.uk

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