Building Energy Efficiency Disclosure Determination 2015

EXPLANATORY STATEMENT

Building Energy Efficiency Disclosure Act 2010 (the Act)

Building Energy Efficiency Disclosure Determination 2015

(the Determination)

The Act establishes the Commercial Building Disclosure (CBD) Programme, which requires the public disclosure of energy efficiency information relating to large commercial office spaces.  The CBD Programme is intended to enable prospective purchasers and tenants to access consistent and accurate energy efficiency information about office spaces, to better inform sale and leasing decisions. 

Sections 11, 12 and 15 of the Act impose disclosure obligations on certain owners and lessors of 'disclosure affected buildings' and 'disclosure affected areas of buildings'.  Owners and lessors of a disclosure affected building are required to disclose energy efficiency information to prospective purchasers and lessees (including sublessees), by:

• having a valid and current 'building energy efficiency certificate' (BEEC) for the building or area of the building registered on the Building Energy Efficiency Register at the time of offering a building (or area) for sale, lease or sublease; and
• if advertising the building for sale or lease, a rating expressed in a manner determined by the Secretary.

The Building Energy Efficiency Disclosure Regulations 2010 (the Regulations) prescribe certain matters which are necessary or convenient for giving effect to the Act including, amongst other things:

• information that must be included in a BEEC; and
• information that must be included in an application for exemption from a requirement that a person provide information in respect of, or access to, a building area.

The Determination is made under sections 13, 13A, 15 and 21 of the Act.  The purpose of this Determination is to specify:

• the manner in which energy efficiency ratings must be expressed in advertisements;
• the assessment methods and standards to be applied in working out the energy efficiency rating for a building;
• the assessment methods or standards to be applied in working out lighting energy efficiency for a building; and
• information to be set out in a building energy efficiency certificate.

Amendments have been made to the Act by the Building Energy Efficiency Disclosure Amendment Act 2015 (Cth), and to the Regulations by the Building Energy Efficiency Disclosure Amendment (Unsolicited Offers and Other Measures) Regulation 2015.  These amendments commence on 1 July 2015.

The amendments to the Act require consequential amendments to the Determination to:

• insert a new section ‘Information included in certificates’ which was moved from the Regulations to the Determination; and
• remove the provision which determined the guidance material included in a certificate. This information will be provided through live and interactive online information from 1 July 2015.

The amendments to the Regulations also require consequential amendments to the Determination to:

• insert the definition of ‘major refurbishment’; and
• insert a definition of ‘Regulations’.

Minor additional amendments to the Determination were made to clarify a number of provisions, including to:

• amend the definition of ‘NABERS Energy Rating rules’;
• clarify the obligations regarding the display of a National Australian Built Environment Rating (NABERS) rating on buildings for sale or lease;
• clarify the modification to the NABERS Energy Rating rules relating to when to conduct a whole building rating; and
• clarify the rules regarding GreenPower ratings.

The Determination implements these measures and amendments by repealing and replacing the Buildings Energy Efficiency Disclosure Determination 2011. 

Details of the content of the Determination are set out in the Attachment.  The Determination commences on 1 July 2015.

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

Consultation was considered unnecessary because the primary purpose of the Determination is to implement consequential amendments flowing from changes to the Act and the Regulations, and to make other minor technical amendments. The changes do not substantially alter existing arrangements.

ATTACHMENT

Details of the Building Energy Efficiency Disclosure Determination 2015

Clause 1 - Name of Determination

This is a formal clause setting out the name of the Determination.

Clause 2 - Commencement

This provision provides for the Determination to commence on 1 July 2015.

Clause 3 - Repeal

This section repeals the previous Determination, the Building Energy Efficiency Disclosure Determination 2011.

Clause 4 - Definitions

These provisions specify the meaning of a number of terms used in the Determination, the majority of which are relevant to the methods and standards determined under section 21 of the Act (see clause 6).

The required information to be listed on a BEEC under section 13A(2) of the Act has been removed from the Building Energy Efficiency Disclosure Regulations 2010 (the Regulations) and inserted into the Determination. The definitions for these related terms have, therefore, also been moved and appear below:

• hours of occupancy;
• net lettable area;
• rated areas;
• rating period.

The definition of ‘major refurbishment’ is the same as the meaning given to it in the Building Energy Efficiency Disclosure Regulation 2010.

NABERS Energy is the National Australian Built Environment Rating System for Energy, administered by the NSW Environment Agency.  The NABERS Energy rating tool benchmarks the actual operational energy use of existing commercial office buildings and awards a star rating from zero to six.  The documents incorporated by reference in clause 4 are accessible on the NABERS Energy website: www.nabers.com.au.  

‘Tenancy Lighting Assessment rules’ is defined to mean the CBD Tenancy Lighting Assessment for Office Rules and related rulings. The rules are published and administered by the Department of Industry and Science. The rules provide for the calculation of Nominal Lighting Power Density in watts per square metre and a measure of the lighting control sophistication for both the existing lighting and for a proposed lighting system which are incorporated by clause 7. The rules are accessible on the CBD website: www.cbd.gov.au.

The definition of ‘start day’ has also been added due to the addition of this term in section 13(1) of the Act. A BEEC must include the date on which the BEEC is valid from, which must be later than its date of issue. This change is to make it easier for building owners to have an ongoing, valid BEEC. With this arrangement building owners can apply for a BEEC ahead of time, avoiding either a period of non-validity or ensuring that they are able to use the full 12-month validity period.

Clause 5 - Advertisements

These sections set out the manner in which an energy efficiency rating must be expressed in an advertisement in order to comply with the disclosure obligations in section 15 of the Act. 

The energy efficiency rating that is contained in the relevant BEEC (which will be either a whole number or a half-number, for example 3 or 3.5) must be expressed in the advertisement followed by the text ‘-star NABERS Energy rating’, for example:

• 3-star NABERS Energy rating; or
• 3.5-star NABERS Energy rating.  

The rating must be prominently displayed on each separate advertisement so that it is clearly visible, using font that is the same size or larger than the majority of the other text contained in the advertisement.

The NABERS star rating is to appear on each separate advertisement piece, not only on one single advertisement piece.

Clause 6 - Methods and standards of assessment: energy ratings

Subclause 6(1)(a) provides for the purpose of section 21(1)(a) of the Act, the methodology to be used by accredited assessors is the NABERS Energy rating rules, subject to the modifications provided by subclauses 6(2) to 6(5) as permitted by subsection 21(2) of the Act. As an alternative, subclause 6(1)(b) permits an assessor to rely on a pre-existing current NABERS rating in the circumstances set out in subclause 6(6) to 6(10).  

When applying the NABERS Energy rating rules under subclause 6(1)(a), an accredited assessor must comply with subclauses 6(2), (3), (4) and (5).

Subclause 6(2) provides that accredited assessors must not take into account any purchases of GreenPower when applying the NABERS energy rating rules. The NABERS rules permit ratings to be improved by the purchase of renewable energy under the GreenPower program. Excluding these purchases prevents the distortion of energy ratings through the purchase of GreenPower to offset the actual emissions produced by a building or area of a building.

Subclause 6(3) amends the operation of the NABERS Energy rating rules to capture buildings which are undergoing a major refurbishment. The effect of this paragraph is that where an accredited assessor reasonably forms the opinion that works currently being undertaken on a building will affect the energy efficiency rating of the building, they are not to provide a rating for the building. This modification of this rule allows for the major refurbishment underway exemption per section 5B of the Regulations.

• The NABERS tool rates buildings out of six stars in half star increments. Therefore, for subclause 6(3) to apply, the assessor must form the opinion that the works are likely to alter the NABERS rating by at least a single half-star increment. For example, works that would change a building rated at 3 stars under NABERS to 3.5 stars would be sufficient.
• The use of the term ‘undertaking’ is intended to limit the operation of this provision to works that are actually physically taking place in a building and therefore exclude from the meaning of works pre-construction planning and related activities.
• The use of the term ‘reasonably forms the opinion’ has been included with the intention for it to be an objective test.
• Subclause 6(3) is also intended to operate in conjunction with subclauses 5(4) and 6(4) of the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2015. These provisions provide an exception from the disclosure obligations of the Act in certain circumstances where a major refurbishment has been completed.

Subclause 6(4) and 6(5) are intended to operate in conjunction. These provisions have been rewritten as the previously used phrase ‘not possible to work out the base building rating’ proved problematic. Technically, under the NABERS Energy Rating rules, it is almost always possible to calculate a base building rating, however, this figure may not always be accurate. This is due to inadequate metering which results in an inability to distinguish accurately between tenancy energy use and base building energy use.

• Under subclause 6(4), metering is deemed inadequate when tenancy energy use is not able to be distinguished from base building energy rating. This would result in a non-representative figure of the base building energy use.  Such a situation would require an assessor to only then conduct a whole building rating.

The NABERS Energy rating rules enable three ratings to be produced:

• A base building rating, which relates to the greenhouse gas emissions associated with the energy consumed in supplying building central services to office lettable and common spaces including for common area lighting and power, lifts and escalators, and air conditioning and ventilation;
• A tenancy rating, which relates to the greenhouse gas emissions associated with the energy consumed by a tenant in a premises, excluding the energy associated with supplying building central services; and
• A whole building rating, which relates to greenhouse gas emissions associated with the energy used by office tenancies and base building services.  This should include all energy supplied to the building for the operation of the building and the occupants. 

Subclause 6(6) provides that an accredited assessor may rely on a NABERS rating produced previously by a different NABERS assessor. The ability of an accredited assessor to rely on a previous NABERS rating is limited to certified NABERS ratings. The ability of an accredited assessor to rely on a previously certified rating under subclause 6(6) is limited by subclauses 6(7) to 6(10).

Subclause 6(7) incorporates the rule set out in subclause 6(2) to ratings used under 6(6). This requires the accredited assessor to disregard any use of GreenPower in a rating previously produced.

Subclause 6(8) applies the rules in subclauses 6(4) and (5) to ratings obtained under subclause 6(6). Specifically, clause 6(8)(b) limits the use of a previously certified whole building rating where there is no currently certified base building rating and it is not possible for the accredited assessor to perform a base building rating for the reasons set out under subclause 6(4).

Subclause 6(9) applies the rule in subclause 6(3) to ratings obtained under subclause 6(6). The effect of this subsection is that accredited assessors cannot rely on a previously issued certified NABERS rating if, since the rating was obtained, works that are likely to effect the energy rating of the building have commenced. This provision only applies where works are currently ongoing. Subclause 6(10), discussed below, will apply once the works cease.

Subclause 6(10) provides that an accredited assessor cannot use a previously issued certified NABERS rating under subclause 6(6) if the assessor reasonably comes to the opinion that since the rating was obtained the building has undergone works which are likely to have changed the NABERS rating. This change to the rating must be by at least half a star.

Where subclause 6(9) or 6(10) applies, a new rating or exemption must be obtained if the building is disclosure affected.

Clause 7 - Methods and standards of assessment: lighting

This provision specifies that the assessment methods and standards for assessing the lighting energy efficiency of a building or an area of a building are the CBD Tenancy Lighting Assessment for Office Rules.

Subsection 7(1)(a) provides that, for the purpose of sections 21(1)(b) and 21(1)(c) of the Act, the methodology to be used by accredited assessors is the Tenancy Lighting Assessment rules. As an alternative, subclause 7(1)(b) permits an assessor to rely on a pre-existing current Tenancy Lighting Assessment in the circumstances set out in subclause 7(2). 

Clause 8– Information included in certificates

Due to the addition of section 13A of the BEED Act, the information which must be included on certificates found in this clause has been moved from the Regulations to this Determination.

No changes have been made to this list, except to those set out in subclause 8(a) and 8(m).

Regarding subclause 8(a), section 13(1) of the BEED Act defines the terms issue day and start day, which were additions from the Building Energy Efficiency Disclosure Amendment Act 2015. It is intended that the ‘start day’ be the date of which the BEEC commences. This date may be the same date as the ‘issue day’ or be a later specified date. 

The provision regarding GreenPower in subclause 8(m) has also been clarified. NABERS is able to produce two types of NABERS Energy Ratings, one that takes into account GreenPower purchases and the other which does not. The rating that does not account for GreenPower purchases is the one to be given on the BEEC.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Building Energy Efficiency Disclosure Determination 2015

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The provisions in the Building Energy Efficiency Disclosure Determination 2015 are necessary due to changes in the overarching Building Energy Efficiency Disclosure Act 2015 and Building Energy Efficiency Disclosure Regulations 2010. The provisions help to better clarify the NABERS Energy Rating rules and the rules relating to advertising. The Determination now also lists the requirements for what is required on a Building Energy Efficiency Certificate.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Secretary of the Department of Industry and Science, Glenys Beauchamp PSM