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The role of the EPC within the ongoing uncertainty surrounding the future of the home information pack, could very well in the light of the proposal for the recasting of the energy performance Directive, become far more significant and defining.
The European Commission has made a proposal for a recast energy performance Directive (COM (2008) 7808 (“the Recast Directive”). Article 11(3) of the current draft provides:
‘Member States shall require that, when buildings or parts thereof are offered for sale, the numeric energy performance indicator of the energy performance certificate is stated in all advertisements or sale of the building or parts thereof, and that the energy performance certificate is shown to the prospective
The Recast Directive would if enacted as currently proposed for the first time explicitly require the energy performance indicator to be included in advertisements for sale of a building.
This is different from the current obligation as set out in Regulation 6 of Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 20072 as this only requires the EPC charts to be included in the written sale particulars. Furthermore and perhaps more significantly this obligation only arises where the duty to deliver a HIP arises under s.155 or s.159 of the Housing Act 2004.
The proposed recast widens the obligation and clearly places the requirement for the EPC to be delivered prior to the point of marketing.
It follows that, were the Recast Directive enacted as proposed, it would after the final date for implementation be incompatible with EC law to withdraw the obligation for a HIP if the requirement as contained within Regulation 6 is amended to reflect this widening of the obligation.
It would always be open to a new government to pass independent secondary legislation to ensure compliance though this would still not enable the government to move the requirement for the delivery of the EPC from the beginning of the process ( before marketing ) to a later stage, say before contracts are exchanged. To include the EPC in all advertising material will mean it will need to be delivered before a property is placed on the market.
There is good argument that even without the recast a new government may be falling foul of EPC law if it were to allow Regulation 6 to fall over as a result of a decision to remove the obligation to deliver a HIP. The Directive (Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002), refers to the delivery of energy data to a ‘prospective buyer’ implying that the delivery should take place prior to marketing rather than at a later stage.
Furthermore, The Government has recognised that to be truly effective, EPCs need to be available at the point where properties are first marketed and at the beginning of the sale process, in order to fulfil what it recognises to be the intention of the Directive that EPCs should be available to enable potential purchasers to compare the energy efficiencies of different properties they are considering buying. Regulation 6 was intended to give effect to this intention, in order effectively to implement the Directive.
Looking at what is happening in some other european countries would also suggest that without Regulation 6 a government would not be complying with the Directive.
Austria
From 1st January 2009, an EPC has been mandatory when buildings are sold or rented, as well as for new buildings and major renovations. The EPC must be ‘made available to the owner or to the potential buyer or tenant by the owner’.
France
As from November 2006, for residential buildings the EPC must be available to the seller as soon as the house is on the market, and must be offered to each prospective buyer.
Regulation 6 may not therefore as some suggest constitute ‘gold plating’. There is strong argument that is all part and parcel of the delivery of the full requirement of the Directive. To take HIPs away without addressing this could cause a new government some major and early legal embarrassment, particularly if as is likely the proposed recast is enacted before the next election.
This clearly helps to strengthens those who argue that the current benefits of ‘upfront information’ as delivered (in part) by the HIP can and should be used as a building block for further and long overdue reform to the home buying and selling process. Reform that is sought I should add by both the consumer and the property professional.
