Do Listed Buildings need an Energy Performance Certificate (EPC)?

There has been a lot of past confusion about exemptions from assessment and inspection requirements for Listed Buildings and buildings within a formally designated conservation area.  Firstly, the limited exemptions that exist appear to vary significantly between the devolved administrations in the UK.  Secondly, the supporting guidance, particularly for England & Wales, is regularly updated and can appear inconsistent at best or even incomprehensible.

As energy assessors, we are not in a position to provide legal advice which you should obtain from a suitable professional where required.  However, we provide these summaries to assist you in understanding the issue.

Energy assessments can also be completed on a voluntary basis if this is an approach you choose to use as a safety net against non-compliance.  However, you should be aware that this may have its own implications.

The information below has been divided up by the devolved administration to which it applies.

For a long time the situation for buildings in England was about as clear as mud.  The wording in the current regulations is taken directly from the European Directive and says “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.”

It is now widely accepted that when these regulations were enacted on 9th January 2013 listed buildings were mistakenly thought to be exempt from the requirement for an EPC for sale or let.  However, even at that time it was acknowledged that they would still require an EPC in other circumstances (e.g. Green Deal).  This belief was re-enforced by guidance published by Historic England which includes the statement “An Energy Performance Certificate (EPC) is a legal requirement when building, selling or renting a property. However, there are exemptions for certain types of building and since January 2013 listed buildings have been exempted from the need to have an EPC.”  However, Historic England’s Terms and Conditions include the disclaimer that the position stated was just their interpretation of the law.  They also accept no liability for its accuracy.  In the absence of enforcement action or legal precedents being set, much discussion continued both in and out of the legal community resulting in differing interpretations and guidance.

Moving forward to February 2017 and the latest guidance to come from The Department of Business, Energy and Industrial Strategy.  This update was contained within the guidance for landlords and enforcement authorities on the minimum level of energy efficiency required to let non-domestic property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.  The advice, published in Chapter 1 on page 19 is shown below:

“There is a common misunderstanding relating to listed buildings and whether they are exempt from the requirement to obtain an EPC. Listed properties, and buildings within a conservation area, will not necessarily be exempt from the requirement to have a valid EPC and it will be up to the owner of a listed building to understand whether or not their property is required to have an EPC. Where a listed privately rented non-domestic property, or a property within a conservation area, is required to have an EPC, that property will be within scope of the minimum energy efficiency standards.

“As noted at 1.3.3 above, an EPC is not currently required for a listed property or building within a conservation area when it is sold or rented in so far as compliance with minimum energy performance requirements would unacceptably alter its character or appearance. Examples of energy performance measures which may alter character or appearance (or as a minimum are likely to require local authority planning permission to install on a listed building) include external solid wall insulation, replacement glazing, solar panels, or an external wall mounted air source heat pump. Where character or appearance would not be altered by compliance with energy performance requirements, an EPC may be legally required.

“If an owner or occupier of a listed building is unsure about whether their particular property is or is not required to have an EPC, appropriate advice should be sought at the earliest opportunity.”

Exactly the same information is contained within the equivalent publication for domestic properties which was published in October 2017.  Changes in other guidance documents issued by MHCLG (formerly DCLG) and BEIS have also been made to reflect this.  Whilst they tend to reduce the previously special status given to listed buildings to a par with other designations including Conservation Areas, National Parks, Scheduled Monuments and protected parks and gardens, they do little to clarify exactly how far an exemption applies.

This guidance suggested that the UK Government believed the exemption for listed buildings is much more restricted than had previously become accepted.  Indeed, it appeared to be more compatible with the interpretation that the Scottish Government had held for some time.  It became accepted that the exemption is solely from making certain improvements (those that would unacceptably alter the protected building’s character or appearance) and not from actually getting an Energy Performance Certificate.  Similarly, it would appear to reflect an expectation that reasonable improvements, particularly where these would improve the energy efficiency of a building whose performance is currently very poor, should be carried out.

At the current time, have an Energy Performance Certificate does not require any works to actually be carried out. The recommendations are just that, recommendations. Therefore, it would be hard to claim that having an EPC could ever unacceptably alter the character or appearance of the building.  As such, it is now normally argued that no building can claim exemption from having an EPC on these grounds alone. Additionally, the current requirements under The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (commonly known as MEES or the Minimum Energy Efficiency Standard) include provision for exemptions from making specific improvements where required third party consent cannot be obtained. Hence, if Listed Building Consent cannot be obtained from the relevant authority no unacceptable alteration to the character or appearance of the building is required.   As such, it remains entirely consistent with the intention of the Energy Performance of Buildings Directive (EPBD) that consideration should be given to making energy efficiency improvements but they should only be carried out where they wouldn’t unacceptably damage the character or structure of the building.  Therefore, there is no need to have an exemption from having an Energy Performance Certificate.

Many councils provide guidance on improving historic buildings with Westminster City Council providing some of the most extensive and practicable advice we have found. This includes a document titled “Energy Efficiency in Conservation Areas” which discusses improvements that can be made without damaging historic structures.

It may have taken some time but Historic England have also now updated their guidance to emphasise the limited nature of the exemption for both Listed Buildings and those in designated Conservation Areas. (NB: We cannot accept responsibility for the actual content of third party websites and it would appear that even this revised guidance contains some technical errors relating to EPCs).  They also provide a wealth of information for those wishing to improve historic buildings without damaging their character and appearance.  Indeed, they acknowledge that ensuring a building remains useful and occupied is often the best way of protecting it for the future.  Additionally, some energy efficiency improvement measures can also improve fire safety and resilience in historic buildings.  It should be remembered that it was never the intent of the protection schemes to freeze buildings in time but instead to ensure that they are managed with appropriate sympathy and conserved for the future.

The background to this issue is also explored in an article by The Residential Landlords Association.  They make the following observation in relation to the exemption of Listed Buildings from EPCs:

“So in reality, in terms of an EPC, the caveat is meaningless. Therefore, a landlord cannot know if an EPC is needed before they have an EPC for the property”

This article continues to draw the following overall conclusion:

“Regrettably, we simply do not know the answer to whether or not an EPC is required for a listed building; nor whether landlords who have rented out listed buildings will have to comply with Minimum Energy Efficiency Standards (subject to any other available exemption, e.g. limiting the amount they have to spend); or whether you need an EPC for a listed building in order to be able to rely on regaining possession under Section 21 of the Housing Act 1988. What is clear is that if you have no EPC then you do not have to comply with Minimum Energy Efficiency Standards from 2018 onwards. You could be liable for a penalty for not having an EPC and equally you might not be able to get possession back relying on Section 21. This is a wholly unsatisfactory state of affairs which needs to be addressed by the Government.”

In Spring 2018 at an industry conference, representatives of both MHCLG and BEIS confirmed that they believed Listed Buildings should have EPCs completed and that recommendations should be implemented wherever possible but with appropriate sympathy to the building as a whole.  At the time they were unaware of the conflicting guidance from Historic England.

Some Listed Buildings in England may be exempt from some of the Energy Performance Certificate (EPC) and Minimum Energy Efficiency Standards (MEES) requirements.  However, specific legal advice should be sought on a case by case basis.  It is unlikely that an exemption can be demonstrated from the need to have an Energy Performance Certificate.

Buildings within formally designated conservation areas are less likely to be subject to exemptions as consent is more likely to be granted.

Energy Performance Certificates are designed to identify improvements that could be made to buildings to reduce their energy consumption.  Just because a recommendation is made does not mean that it has to be carried out.  In fact, it is always advised that further consideration should be undertaken first.  Therefore, the need for compliance is not affected by the historic nature or otherwise of the building.  As such, no exemptions from the requirements for these assessments exist for buildings in Scotland that are listed or in formally designated conservation areas due to this status.

Listed Buildings and those in formally designated conservation areas within Scotland are currently treated as any other building would be treated.  Energy Performance Certificates (EPCs) are required where buildings meet the other qualifying criteria.

For a long time the situation for buildings in Wales was about as clear as mud as the same regulations applied to both England and Wales.  The wording in the regulations was taken directly from the European Directive and says “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.”

It is now widely accepted that when these regulations were enacted on 9th January 2013 listed buildings were mistakenly thought to be exempt from the requirement for an EPC for sale or let.  However, even at that time it was acknowledged that they would still require an EPC in other circumstances (e.g. Green Deal).  This belief was re-enforced by guidance published by Historic England which includes the statement “An Energy Performance Certificate (EPC) is a legal requirement when building, selling or renting a property. However, there are exemptions for certain types of building and since January 2013 listed buildings have been exempted from the need to have an EPC.”  However, Historic England’s Terms and Conditions include the disclaimer that the position stated was just their interpretation of the law.  They also accept no liability for its accuracy.  In the absence of enforcement action or legal precedents being set, much discussion continued both in and out of the legal community resulting in differing interpretations and guidance.

Moving forward to February 2017 and the latest guidance to come from The Department of Business, Energy and Industrial Strategy.  This update was contained within the guidance for landlords and enforcement authorities on the minimum level of energy efficiency required to let non-domestic property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.  The advice, published in Chapter 1 on page 19 is shown below:

“There is a common misunderstanding relating to listed buildings and whether they are exempt from the requirement to obtain an EPC. Listed properties, and buildings within a conservation area, will not necessarily be exempt from the requirement to have a valid EPC and it will be up to the owner of a listed building to understand whether or not their property is required to have an EPC. Where a listed privately rented non-domestic property, or a property within a conservation area, is required to have an EPC, that property will be within scope of the minimum energy efficiency standards.

“As noted at 1.3.3 above, an EPC is not currently required for a listed property or building within a conservation area when it is sold or rented in so far as compliance with minimum energy performance requirements would unacceptably alter its character or appearance. Examples of energy performance measures which may alter character or appearance (or as a minimum are likely to require local authority planning permission to install on a listed building) include external solid wall insulation, replacement glazing, solar panels, or an external wall mounted air source heat pump. Where character or appearance would not be altered by compliance with energy performance requirements, an EPC may be legally required.

“If an owner or occupier of a listed building is unsure about whether their particular property is or is not required to have an EPC, appropriate advice should be sought at the earliest opportunity.”

Exactly the same information is contained within the equivalent publication for domestic properties which was published in October 2017.  Changes in other guidance documents issued by MHCLG (formerly DCLG) and BEIS have also been made to reflect this.  Whilst they tend to reduce the previously special status given to listed buildings to a par with other designations including Conservation Areas, National Parks, Scheduled Monuments and protected parks and gardens, they do little to clarify exactly how far an exemption applies.

This guidance suggested that the UK Government believed the exemption for listed buildings is much more restricted than had previously become accepted.  Indeed, it appeared to be more compatible with the interpretation that the Scottish Government had held for some time.  It became accepted that the exemption is solely from making certain improvements (those that would unacceptably alter the protected building’s character or appearance) and not from actually getting an Energy Performance Certificate.  Similarly, it would appear to reflect an expectation that reasonable improvements, particularly where these would improve the energy efficiency of a building whose performance is currently very poor, should be carried out.

At the current time, have an Energy Performance Certificate does not require any works to actually be carried out. The recommendations are just that, recommendations. Therefore, it would be hard to claim that having an EPC could ever unacceptably alter the character or appearance of the building.  As such, it is now normally argued that no building can claim exemption from having an EPC on these grounds alone. Additionally, the current requirements under The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (commonly known as MEES or the Minimum Energy Efficiency Standard) include provision for exemptions from making specific improvements where required third party consent cannot be obtained. Hence, if Listed Building Consent cannot be obtained from the relevant authority no unacceptable alteration to the character or appearance of the building is required.   As such, it remains entirely consistent with the intention of the Energy Performance of Buildings Directive (EPBD) that consideration should be given to making energy efficiency improvements but they should only be carried out where they wouldn’t unacceptably damage the character or structure of the building.  Therefore, there is no need to have an exemption from having an Energy Performance Certificate.

Many councils provide guidance on improving historic buildings with Westminster City Council providing some of the most extensive and practicable advice we have found. This includes a document titled “Energy Efficiency in Conservation Areas” which discusses improvements that can be made without damaging historic structures.

It may have taken some time but Historic England have also now updated their guidance to emphasise the limited nature of the exemption for both Listed Buildings and those in designated Conservation Areas. (NB: We cannot accept responsibility for the actual content of third party websites and it would appear that even this revised guidance contains some technical errors relating to EPCs).  They also provide a wealth of information for those wishing to improve historic buildings without damaging their character and appearance.  Indeed, they acknowledge that ensuring a building remains useful and occupied is often the best way of protecting it for the future.  Additionally, some energy efficiency improvement measures can also improve fire safety and resilience in historic buildings.  It should be remembered that it was never the intent of the protection schemes to freeze buildings in time but instead to ensure that they are managed with appropriate sympathy and conserved for the future.

The background to this issue is also explored in an article by The Residential Landlords Association.  They make the following observation in relation to the exemption of Listed Buildings from EPCs:

“So in reality, in terms of an EPC, the caveat is meaningless. Therefore, a landlord cannot know if an EPC is needed before they have an EPC for the property”

This article continues to draw the following overall conclusion:

“Regrettably, we simply do not know the answer to whether or not an EPC is required for a listed building; nor whether landlords who have rented out listed buildings will have to comply with Minimum Energy Efficiency Standards (subject to any other available exemption, e.g. limiting the amount they have to spend); or whether you need an EPC for a listed building in order to be able to rely on regaining possession under Section 21 of the Housing Act 1988. What is clear is that if you have no EPC then you do not have to comply with Minimum Energy Efficiency Standards from 2018 onwards. You could be liable for a penalty for not having an EPC and equally you might not be able to get possession back relying on Section 21. This is a wholly unsatisfactory state of affairs which needs to be addressed by the Government.”

In Spring 2018 at an industry conference, representatives of both MHCLG and BEIS confirmed that they believed Listed Buildings should have EPCs completed and that recommendations should be implemented wherever possible but with appropriate sympathy to the building as a whole.  At the time they were unaware of the conflicting guidance from Historic England.

The situation in Wales is now further complicated as many responsibilities relating to this area have now been devolved to the Welsh Government.  Additionally, the Renting Homes (Wales) Act 2016 places new obligations on landlords including a new licencing scheme run by Rent Smart Wales.  Most landlords seem to have concluded that it is much easier to obtain EPCs for Listed Buildings than not. 

Some Listed Buildings in Wales may be exempt from some of the Energy Performance Certificate (EPC) and Minimum Energy Efficiency Standards (MEES) requirements.  However, specific legal advice should be sought on a case by case basis.  It is unlikely that an exemption can be demonstrated from the need to have an Energy Performance Certificate.

Buildings within formally designated conservation areas are less likely to be subject to exemptions as consent is more likely to be granted.

Energy Performance Certificates are designed to identify improvements that could be made to buildings to reduce their energy consumption.  Just because a recommendation is made does not mean that it has to be carried out.  In fact, it is always advised that further consideration should be undertaken first.  Therefore, the need for compliance is not affected by the historic nature or otherwise of the building.  As such, no exemptions from the requirements for these assessments exist for buildings in Northern Ireland that are listed or in formally designated conservation areas due to this status.

Listed Buildings and those in formally designated conservation areas within Northern Ireland are currently treated as any other building would be treated.  Energy Performance Certificates (EPCs) are required where buildings meet the other qualifying criteria.