Exemptions

What exceptions or exemptions apply?

The Building Energy Efficiency Disclosure Act 2010 sets out certain categories of exceptions to and exemptions from the requirements of the Commercial Building Disclosure (CBD) program.

The main categories of exceptions to and exemptions from the obligation to disclose an up-to-date energy efficiency rating at the point of sale, lease or sublease are:

• exceptions to the program for certain offices and circumstances, which are set out in the Act and Regulations, and
• exemptions from the program that may be granted by the Secretary of the Department of Climate Change and Energy Efficiency in certain circumstances. These types of exemptions require an application to be made to the Secretary
• exemptions from the information gathering provisions in the Act.

This section of the website provides information about each of these types of exceptions and exemptions.

What are the exceptions to the program?

In certain circumstances, buildings and office space that would otherwise be considered disclosure affected under the legislation, will not be required to comply with the disclosure obligations in the Act. In accordance with the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2010, these exceptions are currently only available to buildings:

• 1. either new or subject to major refurbishment and a certificate of occupancy has either not been issued or issued less than 2 years prior;
• 2. strata-titled; or
• 3. with total office space comprising less than 75 per cent of the building by net lettable area (or gross lettable area if net lettable area is unavailable).

In addition, the following transactions do not give rise to a disclosure obligation, even if the relevant office space is a disclosure affected building:

• the sale of a building through the sale of shares or units or the sale of a partial interest in a building, as discussed in the explanatory memorandum to the Act, or
• leases and subleases of 12 months or less (including any option to extend), in accordance with section 11 of the Act. For example, a six month lease with an option to extend for another six months would not trigger a disclosure requirement. However, a six month lease with an option to extend for 12 months would trigger a disclosure requirement.

No action is required by the owner or lessor to obtain an exception.

What are the exemptions from the program?

Exemptions from a disclosure obligation

An exemption from a disclosure obligation may be sought in the following circumstances:

• where a building or area is used for police or security operations.
• cases where an energy efficiency rating cannot be assigned because of the characteristics of the office.

Police or security operations

• An exemption may be granted if a disclosure affected office is used by government police or security agencies
  • for example, if a government security agency occupies a building owned by a constitutional corporation required to meet a disclosure obligation, and an assessment is not possible due to the sensitive nature of the facility, then an exemption under this class may be granted.
• The exemption application must be accompanied by supporting information.

Rating cannot be assigned

• This class covers disclosure affected offices for which a National Australian Built Environment Rating System (NABERS) Energy base building or whole building rating assessment is not possible. For example, where there is insufficient data due to extensive vacancies over an extended period, it may not be possible to rate the building according to the NABERS rules. However, this will be a matter of professional judgement for a CBD Acccredited Assessor.
• This is why applications for exemptions must be accompanied by a supporting statement made by a CBD Accredited Assessor, which details the reasons why a rating cannot be assigned.
• Applications will be considered on a case-by-case basis.

Exemptions from information gathering provisions

The Building Energy Efficiency Disclosure Act 2010 sets out information gathering provisions that enable accredited assessors to obtain information and gain access to a building or tenancy to conduct an assessment (see Gathering Information).

Generally, owners and tenants must comply with an information gathering notice issued by an accredited Assessor. However, under certain exceptional circumstances, owners and tenants can apply for an exemption from these requirements.

• Applications under this category must provide sufficient justification
• Applications will be considered on a case-by-case basis.

How do I apply for an exemption?

Applications for exemption must be made to the Secretary of the Department of Climate Change and Energy Efficiency.

The exemption application must be made on the relevant prescribed form below and be accompanied by the prescribed fee – currently $350 (GST free).

Exemption forms

The following forms must be used to apply for an exemption. Please note that an application is not required where an exception to disclosure obligations applies to the office. (See above)

Exemption from a disclosure obligation