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Minimum Energy Efficiency Standard consultations published 22 July 2014

For a further article on this topic , see “Minimum Energy Efficiency Standard – thoughts on the consultation proposals” published on 28 July 2014.

The Department of Energy & Climate Change (DECC) has today published the two long-awaited consultations on what we used to term MEPS (minimum energy performance standard), but will from today have to term MEES (minimum energy efficiency standard).

One consultation covers “domestic” properties and the other “non-domestic” properties.  These terms are defined in the Energy Act 2011.

Consultation on MEES regulations (non-domestic)

Consultation on MEES regulations (domestic)

Each is accompanied by an impact assessment document, which will need to be examined in the same detail as the consultation documents.  The impact assessments are lengthy documents (96 pages in each case).  But the consultation documents are pretty hefty as well – 40 pages in the case of non-domestic, and 61 in the case of domestic.  [Note added on 25 July: I have since established that there is only one impact assessment, which covers both domestic and non-domestic properties.]

Perhaps surprisingly, the consultation documents do not contain draft regulations, as I had expected.  Perhaps the Government is not yet confident enough of the overall policy to start the drafting process.

The final date for response is 2 September 2014, which is a ridiculously short period given the complexities that the regulations will involve, and the fact that it falls exactly over the summer holiday period.  On an initial look at the non-domestic consultation I was unable to see any explanation for such a short period, which strikes me as discourteous.   (The consultation document states that the consultation has been carried out in accordance with the Government’s Code of Practice on consultation, but I am not sure that is correct given that this specifies a minimum consultation period of 12 weeks “under normal circumstances”.) ***

Overview of the non-domestic consultation

This is a brief overview of the issues raised within the non-domestic consultation document (I will have to deal separately with the domestic consultation, in a different article).

The non-domestic consultation document contains 15 questions, mainly setting out the Government’s proposals for dealing with specific issues, and asking whether consultees agree with them.

I will write a longer commentary later in the week on the Government’s specific proposals as set out in the consultation document (and my comments upon them), but in the meantime these are the questions that are raised, to give a flavour of the issues on which the Government is seeking views:

1.  Do you agree with the proposed scope of buildings and leases that should be  covered by the minimum standard regulations? If not, what building or lease types should be included or excluded?

2.  Do you agree that where a property falls below an E EPC rating, the landlord would only be required to make those improvements which could be made at no net or upfront cost, for example through a Green Deal finance arrangement? For those properties that do not meet an E EPC rating, do you have any suggestions for how the process could be streamlined?

3.  Should the Government allow landlords the option of demonstrating compliance by installing those measures which fall within a maximum payback period, and if so do you have any evidence on an appropriate payback period? Do you have any views on how the process of identifying improvement payback periods should operate?

4.  Do you agree with the proposed method for demonstrating an exemption where works would result in a material net decrease in a property’s value? What would be the most appropriate way to set the threshold?

5.  Do you have any evidence that shows the scale of the costs and benefits (including non-financial costs and benefits) associated with improving the energy efficiency of a property, for example time taken to undertake cost effective improvements?

6.  Does the proposed consents exemption strike the right balance between recognising existing landlord obligations, whilst also ensuring that the allowance is not used as a loophole to avoid undertaking improvements? Do you  have any views on how beneficial owner consents should be taken into account?

7.  Do you think the regulations should have a phased introduction applying only to new leases to new tenants from 1 April 2018? Do you agree the regulations should also have a backstop, applying to all leases from 1 April 2023? If not, what alternatives do you suggest?

8.  Should the regulations apply upon lease renewals or extensions where a valid EPC exists for the property?

9.  Do you agree that an exemption for properties below an E rating should last for five years, or where the exemption was due to a tenant’s refusal to consent, when that tenant leaves, if before five years?

10.  Do you agree that the Government should set a trajectory of standards beyond 2018, and if so, how and when should this be done?

11.  Do you consider where a property has a valid exemption for letting below an E EPC rating that certification of compliance would be helpful? If so should this be voluntary or mandatory? Do you have any other comments regarding compliance and how Trading Standard Officers (TSOs) could be supported with enforcement, for example identifying landlords?

12 and 13.  Questions about enforcement.

14.  Any other comments?

15.  Any comments on the impact assessment?

That’s enough to be getting on with.  Now to read the consultation document in detail.  It is already clear that a number of my concerns have not been addressed.  I will cover them in the next article.

For a further article on this topic , see “Minimum Energy Efficiency Standard – thoughts on the consultation proposals” published on 28 July 2014.


 

*** Note added on 23 July – it turns out that the link to the code of practice on consultation that is contained in the rubric at the start of the consultation document is a link to an old version (from 2008).  This is a link to the current version (which is undated but has “Oct 2013” in the title of the link).  On timing, the new version is vaguer and does not specify a minimum 12 week consultation period, but it does say:

“Timeframes for consultation should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response and where the consultation spans all or part of a holiday period (see note) policy makers should consider what if any impact there may be and take appropriate mitigating action. The amount of time required will depend on the nature and impact of the proposal (for example, the diversity of interested parties or the complexity of the issue, or even external events), and might typically vary between two and 12 weeks. The timing and length of a consultation should be decided on a case-by-case basis; there is no set formula for establishing the right length. In some cases there will be no requirement for consultation, depending on the issue and whether interested groups have already been engaged in the policy making process. For a new and contentious policy, 12 weeks or more may still be appropriate. When deciding on the timescale for a given consultation the capacity of the groups being consulted to respond should be taken into consideration.”

The note about holiday periods says “Holiday period assumptions: Easter = 5 Working Days (1 Week); Summer (August) = 22 Working Days (4.2 Weeks); Christmas = 6 Working Days (1.1 Week)”.

I still feel strongly that we should have been allowed a period longer than six weeks, particularly where it exactly spans the summer holiday period.

 

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