Much has been said and written which suggests that there is an absolute exemption from the need for an Energy Performance Certificate (EPC) for Listed Buildings. However, whilst this belief is becoming something of a repeated mantra and therefore gathering momentum in the property industry, there is no such express exemption in the Energy Performance of Buildings Regulations for listed buildings.

Statutory Requirements Regarding EPCs

The Energy Performance of Buildings (England and Wales) Regulations 2012 ("2012 Regulations"), provides – at Section 5 - an exemption from the EPC requirements for buildings defined as:

"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;"

Guidance on both the Government and Historic England websites indicates that listed buildings are exempt from the EPC requirements, although the Government website qualifies that advice should be sought from the appropriate Local Authority Conservation Officer if the work would alter the building’s character. However, it has to be said that the measures proposed in an EPC are simply cost effective measures that ‘could’ be applied - they are not obligatory - and this does not depend upon the status of the building.

So a listed building is exempt from providing an EPC “insofar as compliance with certain minimum energy performance requirements would unacceptably alter their character or appearance”. However, in order to substantiate to an appropriate authority that the energy efficiency measures would “unacceptably alter the buildings character”, and thus prove that the building was exempt from the EPC, would require a seller to undertake the energy assessment and produce the EPC. Classic “Catch 22” scenario

What is a listed building?

The Planning (Listed Buildings and Conservation Areas) Act 1990 (at section 1(5)) defines a listed building as "a building which is included in a list compiled or approved by the Secretary of State".

Historic England states in its guidance that:

"a listing is not a preservation order, preventing change. It does not freeze a building in time, it simply means that listed building consent must be applied for in order to make any changes to that building which might affect its special interest."

From this explanation it is clear that alterations to listed buildings are envisaged. It is simply that listed building consent must first be obtained to any proposed changes.

Interpreting the 2012 regulations strictly would require an assessment as to whether or not compliance with EPC requirements would "unacceptably alter the character or appearance" of a building. Only if the requirements would alter the character or appearance in this way will the building be exempt from the EPC obligations. Many have argued (rightly) that requiring an EPC to prove that an EPC is not required was clearly not the intention of the Regulations.

Interpretation

The 2012 Regulations contain no provisions explaining who should make the assessment as to the alteration of the character or appearance of the listed building mentioned in the exemption. If it is the owner of the building who can make that assessment and if they decide that an alteration would affect the character of the building and they rely on the exemption in the 2012 regulations, then what happens if, subsequently, the assessment is challenged and it is found that the owner was not entitled to rely on the exemption?

The ambiguity of the section 5 exemption coupled with the lack of clarity in the accompanying guidance, could lead to disputes between sellers and buyers over the question as to whether compliance with the 2012 regulations is required on a particular transaction.

Any failure to comply with the regulations could also lead to enforcement action against the owner by the appropriate authority.

Enforcement

The 2012 Regulations provide that a trading standards officer has the power to request a copy of the EPC from the landowner. If requested, the EPC must be produced within seven days, failing which, a penalty charge notice could be issued.

The penalty charge for a breach of duty under S6 of the 2012 Regulations (the duty to produce an EPC on sale or letting of a building) where the building is a dwelling is £200. In addition, under section 43(1) of the 2012 Regulations, a person who obstructs an officer of an enforcement authority acting in pursuance of enforcement is guilty of an offence, punishable by an unlimited fine.

Conclusion

The current position regarding listed buildings is ambiguous and leaves parties to both sales and lettings of listed buildings vulnerable to challenge both between themselves and by the relevant authorities. Owners contemplating the sale, purchase or lease of a listed building would be well advised to seek detailed advice on this issue in light of the nature of the building, its listing category and the likely outcome of an assessment under section 5 of the 2012 regulations. A report could be commissioned from an appropriately qualified surveyor or other professional to support the landowner's position and provide evidence of an assessment. If the outcome remains uncertain, it may be prudent in the long term for the landowner to take steps to comply with the various regulations or to seek an opinion from the relevant listed building officer, rather than rely on an ambiguous exemption.