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Enforcement

This content applies to England & Wales

How the local weights and measures authority can ensure that duties to provide energy performance certificates are fulfilled.

Local weights and measures authority

The local weights and measures authority enforces the regulations relating to energy performance certificates (EPCs).[1] An authorised officer of the local weights and measures authority has the power to require production of a valid EPC and recommendation report for inspection from any seller or potential landlord.[2] The authorised officer can take copies of any document produced for inspection.

Local enforcement of most weights and measures legislation, including that in relation to EPCs, is undertaken by Trading Standards departments.

After Trading Standards has requested information relating to an EPC, it cannot request it again for six months.[3] Requested documents must be provided within seven days from the date of the request. A person does not have to comply with this requirement if s/he has a reasonable excuse for not complying with the requirement.

Penalty charge

Trading Standards may give a penalty charge to any person it believes has committed a breach of the duty to provide EPCs and recommendation reports to (prospective or actual) buyers or tenants. The penalty charge notice cannot be issued more than six months after the date of the breach.[4] The amount of the penalty charge varies in relation to the circumstances, as specified in the regulations.[5]

Any issued penalty charge notice must:[6]

  • state the authorised officer’s belief that a breach of duty has been committed
  • provide particulars of the circumstances as may be necessary to give reasonable notice of the breach of duty
  • require the person specified in the notice to pay the specified penalty charge or give notice to the enforcement authority that s/he wants the authority to review the notice
  • state how the penalty will be recovered by Trading Standards
  • specify the person to whom, and the address at which, the penalty charge may be paid, and the methods by which payment can be made
  • specify the person to whom and the address at which a notice requesting a review may be sent, and to which any representations relating to the review may be addressed.

Defence

There will be no liability to pay the penalty charge notice where the seller or prospective landlord can demonstrate that s/he made a request for an EPC as soon as possible after the duty arose and, despite all reasonable efforts and enquires, s/he did not possess a valid EPC at the relevant time.[7]

Where a prospective landlord failed to make an EPC available to a prospective tenant, the landlord will have a defence if:[8]

  • the tenant was seeking to rent out the building due to an emergency that required the tenant’s urgent relocation
  • at the relevant time the prospective landlord did not have in his possession a valid EPC
  • there was insufficient time to obtain a certificate before renting out the building to the prospective tenant
  • the landlord provided a valid EPC to the tenant as soon as reasonably practicable after renting out the building.

Reviews

The recipient of the penalty charge notice can give notice to Trading Standards requesting a review.[9] The request for a review must take place within a time frame specified in the penalty notice.
Trading Standards shall consider any representations made by the recipient, and all other circumstances of the case. Trading Standards will decide whether to confirm or withdraw the notice and then give notice of its decision to the recipient.

Appeal to the county court

If, after a review, a penalty notice is confirmed by Trading Standards, the recipient then has 28 days from the date of the confirmation notice in which to appeal to the county court.[10] The county court can extend the period for appeal against the notice.

Any appeal must be on one or more of the following grounds:[11] 

  • that the recipient did not commit the breach of duty specified in the penalty charge notice
  • that the notice was not given within the specified time limit, or failed to comply with other requirements imposed by the regulations, or
  • the circumstances were such that it was inappropriate for the notice to be given to the recipient.

The court will either uphold or quash the appeal. If the penalty charge notice is withdrawn or quashed, Trading Standards will repay any amount previously paid by the recipient of the penalty charge notice.

[1] reg 34 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[2] reg 35 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[3] reg 35(4) Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[4] reg 36 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[5] reg 38 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[6] reg 36(3) Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118..

[7] reg 37(1)(a) Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118

[8] reg 37(1)(b) Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[9] reg 39 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[10] reg 40 Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

[11] reg 40(3) Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118. 

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