Not just a load of hot air
Why were the regulations introduced?
The obligation to inspect air-conditioning systems was imposed by the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007. These regulations also introduced the requirement to obtain Energy Performance Certificates (EPCs) and Display Energy Certificates.
The intention behind the regulations is to improve the energy efficiency of buildings. One of the ways the regulations seek to achieve this is by reducing electricity consumption, operating costs and carbon emissions from air-conditioning systems.
Which systems are covered?
The regulations apply to air-conditioning systems which are within a building to cool it for the comfort of occupants. The regulations do not apply to refrigeration provided solely for process applications such as cold stores, pharmaceutical production etc.
The air-conditioning system has to have an effective rated output of more than 12kW. The effective rated output means the maximum calorific output specified and guaranteed by the manufacturer as being deliverable during continuous operation while complying with the useful efficiency indicated by the manufacturer.
The full definition of "air-conditioning system" in the regulations is:
"a combination of all the components required to provide a form of air treatment in which the temperature is controlled or can be lowered, and includes systems which combine such air treatment with the control of ventilation, humidity and air cleanliness".
When do the systems have to be inspected?
The deadlines for inspection depend on the size of the air-conditioning system and when it was first put into service.
If the system was first put into service prior to 1 January 2008, the first inspection must take place by:
- 4 January 2009 - if the system has an effective rated output of more than 250kW. In practice, this means that systems over 250kW need to be inspected by the end of this year; or
- 4 January 2011 – if the effective rated output is over 12kW.
If the system is first put into service on or after 1 January 2008 the inspection has to be carried out within five years of the date on which the system is first put into service.
The effective rated output of the air-conditioning system should be easily ascertainable from the unit itself or the operating and maintenance manual. However, the government guide to air-conditioning inspections for buildings also gives an approximate indication of typical figures for installed capacity for various types of space (for example; general office, retail).
After the initial inspection, the system has to be re-inspected at regular intervals, not exceeding five years. The inspections required by the regulations are in addition to any other servicing or maintenance arrangements in relation to the air-conditioning system, e.g. by virtue of other statutory obligations or duties of care in the operation and maintenance of the system.
What does the inspection consist of?
The inspector, who must be an accredited energy assessor, must give a written report of the inspection. The report provides an assessment of the air-conditioning efficiency and sizing of the system compared with the cooling requirements of the building. Advice is also given for improvements to the system, replacement of it and alternative solutions for cooling the building.
The air-conditioning assessment will not identify hazards or unsafe aspects of the installation, operation or maintenance of systems that should be identified and addressed by other arrangements (see above). Nor will the assessor carry out cleaning operations or adjustments to controls even where they might be carried out simply (although he or she may recommend that this be done).
Who has to ensure that the inspection takes place?
The "relevant person" must obtain the report. This will be the person who has control of the operation of the system. Control is determined by the person who controls the technical functioning of the system and not just the temperature.
The government guide advises that the owner of the system will usually control its operation for these purposes, even where day to day operation is contracted out to another. Where a building is let and the tenant takes complete responsibility for the building and its services (as under a full repairing and insuring lease), the tenant will control the system.
Where the operation and management of the system is carried out on a day-to-day basis by a facilities management company, the contract with the facilities manager (FM) may specify the FM as the controller of the system. In this instance the FM may also become a relevant person for the purposes of the regulations, but the owner or tenant retains a parallel duty to ensure that the inspection has been carried out.
Where the relevant person has the power to control the temperature of more than one individual air-conditioning unit in a building, each unit shall be considered to be a component of a single air-conditioning system for the purpose of calculating the size of the system (and therefore the deadline by which the first inspection must take place).
Summary: who is responsible for ensuring that the inspection takes place?
- In a single let building – the occupier
- In a multi-let building – the owner if a single system covers the building
- If installed by an occupier for its own purposes – the occupier
The government guide contains examples which illustrate the application of the regulations to different types of buildings.
Keeping of records
The most recent inspection report must be kept by the relevant person. The government guide suggests that good practice is to keep the inspection report with the building log-book.
Change in the relevant person
If the relevant person changes (e.g. because the building is sold), then the report must be handed to the new relevant person. If the relevant person changes after 4 January 2011 and the new relevant person does not receive a report, then the system must be inspected within three months of the date that person became the relevant person. Buyers will therefore ask for sight of any air-conditioning inspection reports which have been prepared by the seller.
The effect of these provisions may also be to accelerate the obligation to inspect the air-conditioning system in certain circumstances. As outlined above, air-conditioning systems first put into service on or after 1 January 2008 must be inspected within five years of the date on which the system is first put into service. Therefore, where:
- an air-conditioning system is first put into service on or after 1 January 2008;
- there is a change in the relevant person after 4 January 2011 but within the first five years of the system being put into service; and
- an inspection report is unavailable (as is likely),
the effect of the regulations is that the system must be inspected within three months of the change in relevant person. This is notwithstanding that, had the relevant person not changed, the inspection would not have been required until five years after the system was first put into service.
How will the regulations be enforced?
As with EPCs, the regulations are enforced through the trading standards departments of local authorities. An enforcement officer can require the report to be produced for inspection. If the report is not provided within seven days, a penalty charge notice may be imposed. However, no request for production can be made, or penalty charge notice imposed, more than six months after the breach of the regulations occurred. The penalty charge is £300.
This analysis forms part of a suite of Wragge & Co guides to the Energy Performance of Buildings legislation:
- Energy Performance Certificates (January 2008)
- Energy Performance Certificates (Transitional Provisions) (March 2008)
- A residential landlord's guide to Energy Performance Certificates (July 2008)
- Energy Performance Certificates (updated guidance) (August 2008)
- Energy Performance Certificates (new regulations published) (September 2008)
- Display Energy Certificates (May 2008)
This analysis may contain information of general interest about current legal issues, but does not give legal advice.