The Energy Performance of Buildings (Scotland) Amendment (No. 3) Regulations 2012

Made: 20th November 2012

Laid before the Scottish Parliament: 22nd November 2012

Coming into force: 21st December 2012

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section2(2) of the European Communities Act1972[^f00001] and section 75 of the Energy Act 2011[^f00002] and all other powers enabling them to do so.

Citation and commencement

1

These Regulations may be cited as the Energy Performance of Buildings (Scotland) Amendment (No.3) Regulations 2012 and come into force on 21stDecember 2012.

Amendment of the Energy Performance of Buildings (Scotland) Regulations2008

2

The Energy Performance of Buildings (Scotland) Regulations2008[^f00003] are amended in accordance with regulations3 to 8.

Interpretation

3

In regulation2(1) (interpretation)—

• (a) after the definition of “asset rating” insert—

• “authorised recipient” means a person or body specified in Part 1 of Schedule 1;

• (b) after the definition of “dwelling” insert—

• “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000[^f00004];

• (c) after the definition of “enforcement authority” insert—

• “excluded building” means— a building owned, occupied or used from time to time by any of the naval, military or air forces of the Crown, the Security Service, the Secret Intelligence Service. the Government Communications Headquarters or the Royal Family; or used for the purpose of a prison or a young offenders institution (within the meaning of section 19(1)(b) of the Prisons (Scotland) Act 1989[^f00005]);
• “Framework Regulations” means the Green Deal Framework (Disclosure, Acknowledgement, Redress etc.) Regulations 2012[^f00006];
• “green deal plan” has the same meaning as in section 1 of the Energy Act 2011[^f00007];
• “green deal relevant person” means— a person who is authorised to act as a green deal provider by virtue of the Framework Regulations; a body specified or authorised for the purposes of section 3(1)(a) of the Energy Act 2011; or a person who operates a scheme for the purposes of assessing whether persons are qualified to act as advisors in relation to green deal plans;”

; and

• (d) after the definition of “reference value” insert—

• “report reference number” means the unique reference under which the energy performance data relating to an energy performance certificate for a building or building unit is entered onto the register;

Assessment of energy performance

4

For regulation7 (assessment of energy performance) substitute—

(7) The Scottish Ministers must approve— (a) a methodology of calculation of the energy performance of buildings or building units, including methods for calculating asset ratings of buildings or building units, based on the general framework set out in Annex1 to Directive 2010/31/EU of the European Parliament and of the Council; and (b) ways in which the energy performance of buildings or building units, as calculated in accordance with the methodology, must be expressed.

Disclosure of general access data

5

For regulation12 (disclosure to approved organisation) substitute—

(12) (1) The keeper of a register may disclose— (a) the energy performance certificate; and (b) the recommendations report, for a building or building unit to any person if the conditions in paragraph (2) are met. (2) The conditions are that— (a) a request for disclosure of the document to the person has been made by means of a website operated by the keeper; and (b) the request includes the report reference number for the energy performance data relating to the document. (12A) (1) The keeper of a register may disclose energy performance data relating to a particular building or building unit to an authorised recipient if all of the conditions in paragraph (2) are met. (2) The conditions are that— (a) a request for disclosure of the data to the authorised recipient is made— (i) by means of a website operated by the keeper; or (ii) by electronic communication sent to an address or location specified by the keeper for the purpose of the receipt of such requests; (b) the request includes— (i) the full address (excluding the postcode) of the particular building or building unit to which the data relates; (ii) the full postcode of that building or building unit; or (iii) the report reference number for the energy performance data relating to the building or building unit; (c) the disclosure is made subject to— (i) the condition that the data is to be used by the recipient solely for one or more of the purposes described in Part2 of Schedule 1; and (ii) the conditions set out in Part3 of Schedule 1; and (d) the particular building or building unit to which the data relates is not an excluded building. (3) Where an opt-out is in effect in respect of data relating to the building or building unit, the keeper must, when disclosing information under paragraph (1), inform the authorised recipient that an opt-out is in effect. (4) The keeper may refuse to disclose information under paragraph (1) where the person who requests the disclosure has previously failed to comply with a condition of the kind referred to in paragraph (2)(c). (5) For the purposes of this regulation, regulation 13 and Schedule 1, an opt-out is in effect in respect of data relating to a building or building unit where— (a) the owner or occupier of the building or building unit has notified the keeper that the data is not to be disclosed so as to enable contact to be made with the owner or occupier by a person to whom data is disclosed; (b) the notice to the keeper was given in writing, or by electronic communication sent to an address or location specified by the keeper for the purpose of the receipt of such notices; and (c) the notice has not been withdrawn by the owner or occupier (by the means referred to in sub-paragraph (b)).

Disclosure of bulk access data

6

For regulation13 (disclosure to enforcement authorities and/or the Scottish Ministers) substitute—

(13) (1) The keeper of a register may disclose energy performance data to an authorised recipient if all of the conditions in paragraph (2) are met. (2) The conditions are that— (a) the authorised recipient has made a request for one or more specific descriptions of data to the keeper; (b) the request is made— (i) by means of a website operated by the keeper; or (ii) by electronic communication sent to an address or location specified by the keeper for the purpose of the receipt of such requests; (c) the data does not include any information revealing the location of an excluded building (or any information from which the location of such a building can be deduced); (d) the disclosure is made subject to— (i) the condition that the data is to be used by the recipient solely for one or more of the purposes described in Part2 of Schedule 1; and (ii) the conditions set out in Part3 of Schedule 1; and (e) the data does not relate only to a particular building or building unit. (3) Where an opt-out is in effect in respect of data relating to the building or building unit, the keeper must, when disclosing information under paragraph (1), inform the authorised recipient that an opt-out is in effect. (4) The keeper may refuse to disclose information under paragraph (1) where the person who requests the disclosure has previously failed to comply with a condition of the kind referred to in paragraph (2)(d).

Disclosure of energy performance data

7

For regulation14 (use of information by the Scottish Ministers and/or the keeper of the register) substitute—

(14) (1) The keeper of a register must when requested to do so disclose energy performance data— (a) to an enforcement authority for the purposes of their duty to enforce these Regulations; or (b) where the disclosure is required by or under any enactment, by any rule of law or by the order of a court. (2) The keeper may disclose energy performance data to the Scottish Ministers for the purpose of enabling the Scottish Ministers to carry out any function under or in connection with these Regulations, or for statistical or research purposes.

Disclosure of data: purposes and conditions

8

Insert the Schedule contained in the Schedule to these Regulations as Schedule 1 to the Regulations.

Amendment of the Energy Performance of Buildings (Scotland) Amendment Regulations2012

9

• (1) The Energy Performance of Buildings (Scotland) Amendment Regulations2012[^f00008] are amended in accordance with paragraph (2).

• (2) Regulations 9 (disclosures to approved organisations), 10 (disclosures to enforcement authorities and/or the Scottish Ministers) and 11 (use of information by the Scottish Ministers and/or the keeper of the register) are revoked.

Amendment of the Energy Performance of Buildings (Scotland) Amendment (No.2) Regulations2012

10

• (1) The Energy Performance of Buildings (Scotland) Amendment (No.2) Regulations2012[^f00009] are amended in accordance with paragraph (2).

• (2) Regulations 9 (assessment of energy performance) and 13 (use of information by the Scottish Ministers and/or the keeper of the register) are revoked.

SCHEDULE

Signed

DEREK MACKAY — Authorised to sign by the Scottish Ministers — 20th November 2012

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

The Energy Performance of Buildings (Scotland) Amendment (No.3) Regulations 2012 amend the Energy Performance of Buildings (Scotland) Regulations 2008 (“the 2008 Regulations”). The 2008 Regulations transposed the provisions of Directive 2002/91/EC of the European Parliament and of the Council on the energy performance of buildings (recast) (OJ L 1, 4.1.2003, p.65) (“the 2002 Directive”).

The 2002 Directive has now been recast by Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings (OJ L 153, 18.6.2010 p.13) (“the 2010 Directive”).

The Regulations amend the provisions of the 2008 Regulations relating to disclosure of information held on a register of energy performance data maintained under regulation 10 of the 2008 Regulations. Regulations 5 to 8 introduce new regulations 12, 12A, 13 and 14 into the 2008 Regulations together with the related new Schedule. These provisions enable the keeper of a register to disclose documents or data held on the registers subject to certain limitations and conditions. Regulation 3 introduces new definitions for these purposes into regulation 2 of the 2008 Regulations.

Regulation 4 replaces regulation 7 of the 2008 Regulations. The new regulation 7 refers to both building and building units throughout. Regulations 9 and 10 respectively remove redundant provisions from the Energy Performance of Buildings (Scotland) Amendment Regulations 2012 and Energy Performance of Buildings (Scotland) Amendment (No. 2) Regulations 2012.

Footnotes

[^f00001]: 1972 c.68. Section2(2) was amended by the Scotland Act1998 (c.46) (“the 1998Act”), Schedule8, paragraph 15(3) (which was amended by section27(4) of the Legislative and Regulatory Reform Act2006 (c.51) (“the 2006Act”)). Section2(2) was also amended by section27(1)(a) of the 2006Act and by the European Union (Amendment) Act2008 (c.7), Schedule, Part1. The functions conferred upon the Minister of the Crown under section2(2), insofar as within devolved competence, were transferred to the Scottish Ministers by virtue of section53 of the 1998Act.

[^f00002]: 2011 c.16.

[^f00003]: S.S.I.2008/309 as amended by S.S.I.2008/389, 2012/190 and 2012/208.

[^f00004]: 2000 c.7 as amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c.21).

[^f00005]: 1989 c.45 as amended by section23(1) of the Criminal Justice (Scotland) Act 2003 (asp 7).

[^f00006]: S.I. 2012/2079.

[^f00007]: 2011 c.16.

[^f00010]: 1989 c.29.

[^f00011]: 2008 c.32.

[^f00012]: 1998 c.29 as amended by section 68 of and Schedule 8 to the Freedom of Information Act 2000 (c.36) and S.I.2004/3089.

[^f00013]: 2011 c.16.

[^f00014]: 1998 c.29. Section 1(1) has been amended by sections 68 and 86 of and Schedule 8 to the Freedom of Information Act 2000 (c.36).