1 S.I.
2011/1515: Reported for defective drafting
Building (Amendment) Regulations 2011 (S.I. 2011/1515)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
1.2 Regulation 2 of this instrument amends regulation
9(1) of the Energy Performance of Buildings (Certificates and
Inspections) (England and Wales) Regulations 2007. Regulation
9(1) of the 2007 Regulations previously read as follows:
(1) Paragraph (2) applies
to all buildings in relation to which the Building Regulations
2010 do not apply, other than—
(a) buildings which are
exempt from those Regulations by virtue of regulation 9 of those
Regulations;
(b) buildings which are
used primarily or solely as places of worship;
(c) temporary buildings
with a planned time of use of two years or less, industrial sites,
workshops and non-residential agricultural buildings with low
energy demand; and
(d) stand-alone buildings
with a total useful floor area of less than 50m2
which are not dwellings.
1.3 The amendments made by this instrument are that
the reference in sub-paragraph (a) to regulation 9 becomes a reference
to regulation 21 and sub-paragraphs (b) to (d) are omitted.
1.4 Regulation 9 of the 2010 Regulations specifies
descriptions of buildings to which those Regulations do not apply.
Regulation 21 of those Regulations specifies certain descriptions
of work to which the energy efficiency requirements of those Regulations
apply.
1.5 As there are no buildings which are exempt from
the 2010 Regulations by virtue of regulation 21, the Committee
asked the Department for Communities and Local Government whether
the amendment substituting a reference to that regulation for
the reference to regulation 9 was correct, and to explain what
is meant by the phrase "buildings which are exempt from the
[2010 Regulations] by virtue of regulation 21 of those Regulations".
1.6 In a memorandum printed at Appendix 1, the Department
asserts that the amendment is correct. The Department explains
the history of the provisions in question in some detail. Regulation
9(1) of the 2007 Regulations originally referred to the Building
Regulations 2000, and in sub-paragraph (a) to regulation 9 of
those Regulations. When the 2000 Regulations were consolidated
as the Building Regulations 2010, a consequential amendment was
made to regulation 9(1) substituting a reference to the 2010 Regulations.
In the 2000 Regulations (as amended immediately before consolidation),
regulation 9 contained provisions equivalent to those now contained
in regulations 9 and 21 of the 2010 Regulations.
1.7 In the Department's view, the reference in regulation
9 of the 2007 Regulations to buildings which are exempt from the
2010 Regulations should be read as a reference to buildings in
respect of which works are exempt from the energy efficiency requirements
of the 2010 Regulations, and that the reference to regulation
21 of those Regulations is therefore correct. It considers that
this would be easily understood in the context of regulation 9
of the 2007 Regulations as those Regulations are concerned with
the energy performance of buildings.
1.8 The Committee cannot agree.
1.9 It notes in passing that regulation 9 of the
2007 Regulations is in Part 2 of that instrument. By virtue of
regulation 4(1), Part 2 does not apply to buildings of the type
mentioned in sub-paragraphs (b) to (d) of regulation 9(1). Those
sub-paragraphs were therefore otiose and should not have been
included when the 2007 Regulations were made.
1.10 Regulation 9(1)(a) of the 2007 Regulations has
previously made perfect sense if the reference to buildings which
are exempt from the Building Regulations (of 2000 or 2010) by
virtue of regulation 9 of those Regulations was read literally.
The Committee notes that the Explanatory Note to the 2007 Regulations
when made stated that "Regulation 9 requires certificates
for those buildings to which the Building Regulations 2000 do
not apply".
1.11 The Department's analysis of the intended meaning
of regulation 9(1)(a) is therefore inconsistent with the intended
meaning at the time that provision was originally enacted and,
the Committee suspects, when it was amended in consequence of
the consolidation of the Building Regulations in 2010. Yet regulation
2 of the present instrument is presented by the Department as
correcting an error rather than making a substantive change. If,
however, a substantive change were the purpose, something more
than a simple substitution of "21" for "9"
would have been required. It is clearly wrong to refer to buildings
to which the Building Regulations 2010 (except only the energy
efficiency requirements of those Regulations) apply as buildings
which are exempt from those Regulations. A more precise and accurate
description of buildings should have been used.
The Committee is therefore satisfied that regulation
2 of this instrument is defectively drafted, either because it
makes an unintended change to the effect of the 2007 Regulations
or because it uses words which are inadequate to express clearly
the intended new effect. It notes that the deletion of sub-paragraphs
(b) to (d) is appropriate albeit for a reason apparently not realised
by the Department. The Committee accordingly reports regulation
2 for defective drafting.
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