Federal Register of Legislation - Australian Government

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Determinations/Other as made
This Determination specifies the guidance information for the purposes of paragraph 13(1)(c) of the Act, determines these assessment methods and standards for the purposes of section 21 of the Act, and sets out the manner in which the ratings must be expressed in advertisements for the purposes of section 15 of the Act.
Administered by: Industry and Science
Registered 11 Aug 2011
Tabling HistoryDate
Tabled HR18-Aug-2011
Tabled Senate18-Aug-2011
Date of repeal 01 Jul 2015
Repealed by Building Energy Efficiency Disclosure Determination 2015

EXPLANATORY STATEMENT

 

 

Building Energy Efficiency Disclosure Act 2010

 

Building Energy Efficiency Disclosure Determination 2011

(the Determination)

 

 

The Building Energy Efficiency Disclosure Act 2010 (the Act) establishes a scheme for public disclosure of energy efficiency information relating to large commercial office spaces.  The scheme 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'.  Broadly, owners and lessors 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) registered on the Building Energy Efficiency Register at the time of offering a building (or area) for sale, lease or sublease; and

·         including an energy efficiency 'star rating' in any sale, lease or sublease advertisement.    

 

The Determination relates to a number of aspects of these obligations that are contained in sections 13, 15 and 21 of the Act.  This Determination repeals the Building Energy Efficiency Disclosure Determination 2010.

 

Section 13 of the Act sets out the requirements that a certificate must satisfy in order to constitute a BEEC for the purposes of the Act.  Amongst other things, paragraph 13(1)(c) provides that a BEEC must contain guidance of a kind determined by the Secretary on how energy efficiency might be improved.  The Determination specifies the guidance information for the purposes of paragraph 13(1)(c).   

 

Section 13 also requires that a certificate contain an energy efficiency rating for the building, and an assessment of the energy efficiency of the lighting for the building (or area of the building) that might reasonably be expected to remain if the building is sold, let or sublet.  The energy efficiency rating and lighting assessment must be made in accordance with methods and standards determined by the Secretary under section 21 of the Act.  The Determination determines these assessment methods and standards.

 

Section 15 of the Act sets out the circumstances in which an energy efficiency rating must be included in an advertisement.  The section also provides that an obligation to include a rating in an advertisement will only be satisfied if the rating is expressed in the advertisement in a manner determined by the Secretary.  The Determination sets out the manner in which the ratings must be expressed in advertisements for the purposes of section 15.

 

Details of the content of the Determination are set out in the Attachment. 

 

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

 

Consultation

 

The Determination has been prepared following substantial industry consultation undertaken between December 2007 and June 2010.  This included the delivery of information seminars in each capital city, the release of consultation documents, and the engagement of key stakeholders through workshops and advisory committees. 

 

The Tenancy Assessment Lighting Rules were developed following substantial industry consultation, including engagement with key stakeholders at workshops in 2011.

 

The changes to the Determination with respect to major refurbishments were developed in response to industry feedback during an ongoing consultation process about the implementation of the program during 2010 and 2011.


ATTACHMENT

 

Details of the Building Energy Efficiency Disclosure Determination 2011

 

Clause 1 - Name of Determination

 

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

 

Clause 2 - Commencement

 

This clause provides for the Determination to commence on registration on the Federal Register of Legislative Instruments.

 

Clause 3 - Repeal

 

This clause repeals the previous Determination, the Building Energy Efficiency Disclosure Determination 2010.

 

Clause 4 - Definitions

 

This clause specifies 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 7).     

 

A number of these terms are defined with reference to the content of other documents as in force from time to time.  Incorporating material of this kind by reference is authorised for this purpose by subsection 21(2) of the Act and section 14 of the Legislative Instruments Act 2003.  These terms relate to the NABERS Energy rating tool for offices and the Commercial Building Disclosure (CBD) Tenancy Lighting Assessment for Office Rules. 

 

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

 

The CBD Tenancy Lighting Assessment for Office Rules are published and administered by the Department of Climate Change and Energy Efficiency. 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, are incorporated by clause 8. The rules are accessible on the CBD website: www.cbd.gov.au

 

Clause 5 - Guidance material for certificates

 

This clause determines the guidance material that must be included in a certificate under paragraphs 13(1)(c) and 13(2)(c).  Schedule 1 to the Determination contains the guidance material that must be included in all BEECs. 

 

The guidance material provides information for owners and tenants about how energy efficiency in buildings and areas of buildings might be improved.  There is no legal obligation on owners or tenants to implement any of the measures identified in the guidance.  The guidance is necessarily general in nature, and is designed to encourage building owners and tenants to explore options for increasing the energy efficiency of their office buildings and areas, and to seek appropriate professional advice on cost effectiveness and implementation.

 

Clause 6 - Advertisements

 

This clause sets 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 in the 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.

 

Clause 7 - Methods and standards of assessment: energy ratings

 

This clause replaces clause 6 of the repealed Building Energy Efficiency Disclosure Determination 2010. This new clause contains amended wording of the previous clause 6 to clarify the operation of its provisions and provides additional modification to the NABERS Energy rating rules so as to provide new rules relating to the treatment of major refurbishments and to permit accredited assessors to rely on current NABERS assessments that have been certified by the NABERS National Administrator.

 

Subsection 7(1)(a) provides that, for the purpose of section 21(1)(a) of the Act, that the methodology to be used by accredited assessors is the NABERS Energy rating rules, subject to the modifications provided by subsections 7(2) to 7(5) as permitted by subsection 21(2) of the Act. As an alternative, subsection 7(1)(b) permits an assessor to rely on a pre-existing current NABERS rating in the circumstances set out in subsections 7(6) to 7(10).  

 

When applying the NABERS Energy rating rules under subsection 7(1)(b), an accredited assessor must comply with subsections 7(2), (3), (4) and (5).

 

Subsection 7(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.

 

The precise wording of subsection 7(2) is different to the wording of this rule as previously provided in the repealed Building Energy Efficiency Disclosure Determination 2010. The wording has been amended to clarify the intent of this provision and is not intended to change its effect.

Subsection 7(3) amends the operation of the NABERS Energy rating rules to provide a new rule where buildings are undertaking 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. As such, for the duration of the works, the building must be held as ‘unrateable’ applying the NABERS Energy rating rules as amended by this clause.

 

The NABERS Energy rating rules do provide for a building to be held as unrateable in certain circumstances. Where a building or part of a building cannot be rated, an exemption may be applied for under section 17 of the Act.

 

This provision is also intended to operate in conjunction with subsections 5(3) and 6(3) of the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2010 (No.2). These provisions provide an exception from the disclosure obligations of the Act in certain circumstances where a major refurbishment has been completed.

 

Works likely to effect the energy efficiency rating of the building are works that are likely to result in an altered NABERS rating. The NABERS tool rates buildings out of 5 stars in half star increments. Therefore, for this provision 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 in this subsection to exclude opinions that are formed unreasonably. It is intended to be an objective test.

 

Subsections 7(4) and 7(5) replace subsections 6(3) and 6(4) in the previous Determination. The clauses have been redrafted to clarify the intention of the provisions and are not intended to change the operation of the clauses.

 

Subsections 7(4) and 7(5) are intended to operate in conjunction. Subsection (4) requires that an accredited assessor must produce a base building rating, unless it is impossible to do so under the NABERS Energy rating rules due to insufficient metering of building energy use. Specifically, that is that the building’s metering does not capture data so as to enable the distinguishing of energy data between base building services and tenant energy uses as distinguished by the NABERS Energy rating rules. Where subsection (4) cannot be complied with, subsection (5) permits an accredited assessor to perform 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. 

 

Clause 4 of the Determination (Definitions) includes a link to these rules on the NABERS website: www.nabers.com.au

 

Subsection 7(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 only certified NABERS ratings. NABERS ratings can only be produced by NABERS accredited assessors, are certified by the National Administrator of NABERS and are only valid for twelve months. In addition, the ability of an accredited assessor to rely on a previously certified rating under subsection 7(6) is limited by subsections 7(7) to 7(10). These provisions are intended to avoid requiring accredited assessors to recreate a NABERS rating where a reliable NABERS rating has recently been produced.

 

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

 

Subsection 7(8) applies the rules in subsections 7(4) and (5) to ratings obtained under 7(6). Specifically, subsection 7(8)(b) limits the use of a previously certified whole building rating where there is no currently certified base building rating and it is possible for the accredited assessor to perform a base building rating for the reasons set out under subsection 7(4).

 

Subsection 7(9) applies the rule in subsection 7(3) to ratings obtained under 7(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, subsection 7(10) will apply once the works cease. For this provision 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.

 

Subsection 7(10) provides that an accredited assessor cannot use a previously issued certified NABERS rating under subsection 7(6) if the assessor reasonably comes to the opinion that since the rating was obtained, works undertaken on the building are likely to have changed the NABERS rating. For this provision to apply, the assessor must form the opinion that the works have altered the NABERS rating by at least a single half-star increment. For example, that the works have changed a building previously rated at 3 stars to likely now be (once assessed) at 3.5.

 

Where subsection 7(9) or 7(10) applies, a new rating or exemption must be obtained if the building is disclosure affected.

 

Clause 8 - Methods and standards of assessment: lighting

 

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

 

Subsection 8(1)(a) provides that, for the purpose of section 21(1)(a) of the Act, that the methodology to be used by accredited assessors is the Tenancy Lighting Assessment rules. As an alternative, subsection 7(1)(b) permits an assessor to rely on a pre-existing current Tenancy Lighting Assessment in the circumstances set out in subsections 7(2). 

 

Clause 4 of the Determination (Definitions) includes a link to these rules on the CBD program website: www.cbd.gov.au.