(a) a report on the energy efficiency of the dwelling (in this Schedule referred to as ``an energy efficiency report'') has been prepared by or on behalf of the lender in accordance with regulations under paragraph 5 on the basis of the physical inspection undertaken for the purpose of the qualifying survey, and
(b) the person granting the mortgage (in this Schedule referred to as ``the borrower'') has been provided, before the grant of the mortgage, with a copy of the energy efficiency report.
(2) No duty arises under sub-paragraph (1) unless
(a) the mortgage relates only
(i) to a single dwelling, or
(ii) to a single dwelling together with premises occupied or intended to be occupied for business purposes,
(b) the loan to which the mortgage relates was made in pursuance of an application made to the lender by the borrower, and
(c) the dwelling is occupied by, or is intended for occupation by, the borrower as his residence.
(3) The lender may, in fixing the amount of any fee to be charged for a qualifying survey, taken into account any additional costs reasonably incurred in preparing the energy efficiency report, but the duty in sub-paragraph (1) arises whether or not the borrower has paid, or agreed to pay, any such additional costs.
(4) In sub-paragraph (1) a ``qualifying survey'', in relation to a dwelling, means any survey or valuation which includes a physical inspection of both the exterior and the interior of the dwelling.
2. The duty in paragraph 1 does not arise in relation to any dwelling which was provided (by construction or conversion) less than three years before the date on which the borrower applied for the loan to which the mortgage relates.
3. The duty in paragraph 1 does not arise where, before the grant of the mortgage, the borrower has obtained, or been given a copy of, a report which
(a) relates to the dwelling,
(b) complies with regulations under paragraph 5, and
(c) was prepared less than twelve months before the date on which the borrower applied for the loan to which the mortgage relates.
4.(1) The duty in paragraph 1 does not arise where
(a) the lender is a member of the borrower's family and is not lending in the course of a business carried on by the lender, or
(b) the lenders are the trustees of a trust created by an individual for the benefit of members of his family and their descendants.
(2) For the purposes of sub-paragraph (1) a person is a member of another's family if
(a) he is the spouse of that person, or he and that person live together as husband and wife, or
(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
(3) For the purposes of sub-paragraph (2)(b)
(a) a relationship by marriage shall be treated as a relationship by blood,
(b) a relationship of the half-blood shall be treated as a relationship of the whole blood, and
(c) the stepchild of a person shall be treated as his child.
5.(1) The Secretary of State shall make regulations specifying the requirements which must be met by the lender in relation to the preparation of an energy efficiency report.
(2) The regulations may, in particular, require a report to include
(a) information as to the presence or absence in the dwelling of specified measures for improving energy efficiency, and
(b) a statement recommending measures which could be taken for the purpose of improving energy efficiency.
(3) Regulations under this paragraph may make different provision for different cases and different areas.
(4) Regulations under this paragraph may not require an energy efficiency report to contain any information in respect of the dwelling which is not readily ascertainable on a visual inspection of so much of the exterior and interior of the dwelling as is accessible without undue difficulty to the person undertaking the inspection.
(5) Regulations under this paragraph may not require an energy efficiency report in respect of a flat to contain information about the common parts of the building in which the flat is situated.
(6) Before making regulations under this paragraph, the Secretary of State shall consult
(a) such mortgage lenders or persons appearing to him to represent mortgage lenders as he considers appropriate, and
(b) such other persons as he considers appropriate.
(7) In making regulations under this paragraph, the Secretary of State shall have regard to the cost of preparing an energy efficiency report.
(8) Regulations under this paragraph shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(9) In this paragraph
``common parts'', in relation to a building, includes the structure and exterior of the building and common facilities provided, whether in the building or elsewhere, for persons who include the occupiers of one or more flats in the building;
``flat'' means a dwelling which is a separate set of premises, whether or not on the same floor, divided horizontally from some other part of the building;
``mortgage lender'' means a person who, in the course of a business, lends money secured by mortgages of dwellings.
6.(1) If the borrower suffers loss by reason of the failure of the lender to comply with his duty under paragraph 1, the borrower is entitled to compensation for that loss from the lender.
(2) In determining for the purposes of this paragraph whether the borrower has suffered loss as mentioned in sub-paragraph (1) and, if so, the amount of that loss, a court
(a) shall assume that the borrower would have taken every measure that would have been recommended in a report complying with paragraph 5,
(b) shall have regard to the cost that would be likely to have been incurred in taking those measures if they had been taken immediately after the grant of the mortgage,
(c) shall determine the likely expected life of each measure and apportion that cost rateably over that life, and
(d) shall calculate the savings that would have been made during the relevant period if the measures had been taken.
(3) In sub-paragraph (2) ``the relevant period'' means the period beginning with the day on which the mortgage was granted and ending immediately before the sixth anniversary of that day or, if earlier
(a) in relation to any measure falling within sub-paragraph (2)(a) which has in fact been taken by the borrower, with the day on which the taking of the measure is completed,
(b) in a case where the lender provides the borrower with, or with a copy of, an energy efficiency report complying with paragraph 5 prepared not less than 12 months before the day on which it is provided, that day,
(c) the day on which the borrower ceases to own any interest in the dwelling,
(d) the death of the borrower, or
(e) the day on which any proceedings under this paragraph are first determined by a court or by the award of an arbitrator.
7. In this Schedule
``the borrower'' and ``the lender'' shall be construed in accordance with paragraph 1;
``dwelling'' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses or appurtenances belonging to it or usually enjoyed with it, but does not include a mobile home;
``energy efficiency report'' shall be construed in accordance with paragraph 1;
``mobile home'' means a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 (disregarding the amendment made by section 13(2) of the Caravan Sites Act 1968);
``mortgage'' means any mortgage or other charge on property for securing money or money's worth which is made by deed.
8.(1) Paragraph 5 and this paragraph shall come into force on the day on which regulations made under section 7( ) take effect.
(2) The remaining provisions of this Schedule shall come into force on such day or days as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes or different areas.
(3) The power to make an order under sub-paragraph (2) includes power to make such transitional provisions and savings as the Secretary of State considers appropriate.
(4) The Secretary of State shall consult the National Assembly for Wales before making any regulations under this schedule which relate to Wales.
(5) This schedule extends to England and Wales only.'.