Exceptions and Exemptions
Generally, the Building Energy Efficiency Disclosure Act 2010 (BEED Act) requires a Building Energy Efficiency Certificate (BEEC) before office space of 1000 square metres or more goes on the market for sale, lease or sublease.
However, some buildings or areas of buildings are not affected by the Commercial Building Disclosure (CBD) Program because they are either:
- considered an exception to the program—exceptions are automatic, meaning you do not have to apply for an exception - but we may ask you to supply information to substantiate your exception as part of our compliance monitoring activities
- granted a temporary exemption from the program—you have to apply for exemptions.
On this page:
- Exemptions from disclosure obligations
- Exemptions from information gathering provisions
- Applying for an exemption
You do not need to apply to obtain an exception, however you may be required to substantiate your exception as part of our compliance monitoring activities. Exceptions can relate to either the type of building or the type of transaction.
Types of buildings
As identified in the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016, exceptions apply to:
- new buildings where a certificate of occupancy (or equivalent) has either not yet been issued or was issued less than two years earlier
- buildings which have completed a major refurbishment for which a certificate of occupancy (or equivalent) was issued less than two years earlier. Note: for a major refurbishment where no certificate of occupancy was issued, you need to apply for an exemption. For more information on major refurbishments see ‘What buildings are affected’.
- strata-titled buildings
- mixed use buildings where total office space comprises less than 75 per cent of the building by net lettable area (or gross lettable area if net lettable area is unavailable). For guidance on mixed use buildings, download the Mixed Use guidance note.
Types of transactions
In addition, the following transactions do not create a disclosure obligation, even if the space is disclosure affected:
- the sale of a building through the sale of shares or units or the sale of a partial interest in a building
- 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. For further information, download the guidance note on Treatment of certain property transactions.
You may apply for an exemption from the disclosure obligation:
- where your building or an area of your building is used for police or security operations
- in cases where an energy efficiency rating cannot be assigned because of the current characteristics of the building or an area of the building.
Applications are considered on a case-by-case basis.
Spaces used for police or security operations
An exemption may be granted if a disclosure affected office is used by a federal, state or territory police or security agency.
For example, if a government security agency occupies a building owned by a constitutional corporation that is required to meet a disclosure obligation, and an assessment is not possible due to the sensitive nature of the work undertaken in the facility, then an exemption may be granted.
The exemption application must be accompanied by supporting information.
Spaces where a rating cannot be assigned
An exemption may be granted for a disclosure affected building or area of a building where a Tenancy Lighting Assessment or National Australian Built Environment Rating System (NABERS) Energy base building or whole building rating assessment is not possible.
For example, if there is insufficient data due to vacancies over an extended period, it may not be possible to rate the building in accordance with the NABERS rules. This will be a matter of professional judgement for a CBD Accredited Assessor. Please note: Buildings with a low occupancy rate may still require a BEEC. The 75% occupancy rule applies to new and recently refurbished buildings only.
A disclosure affected office which is currently undergoing a major refurbishment that is physical works that will change the NABERS rating of the building is not rateable for the purposes of the CBD Program for the duration of the works. Whether the works will affect the energy efficiency rating of the building is a matter of professional judgement for a CBD Accredited Assessor and requires a supporting statement from the NABERS team stating that a rating can't be assigned.
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.
The Building Energy Efficiency Disclosure Act 2010 enables CBD accredited assessors to obtain information and gain access to a building or tenancy to do an assessment. For more information, see 'When you need to provide access and information for an assessment'
Owners and tenants must comply with an information gathering notice or an access notice issued by a CBD accredited assessor. Civil penalties may be imposed for failing to provide access or information as required, except where an exemption from disclosure obligations has been granted as noted above. If access to the area of the building in question is not provided, and the area has not been granted an exemption from disclosure obligations, than that area can be excluded from the BEEC. This means that the BEEC will not cover the entire building, and the excluded area cannot be offered for sale or lease.
Applications under this category must provide sufficient justification and are considered on a case-by-case basis by the Department of the Environment and Energy.
Applications for exemption must be made to the Secretary of the Department of the Environment and Energy.
The fee for applying for an exemption is $410 (GST free). This fee is mandated under the Building Energy Efficiency Disclosure Act 2010 and increases in line with inflation each financial year.
The CBD Program now accepts payment with a Credit card for Exemption Applications. Please call our accounts team on (02) 6274 1151 between 8:30am and 5pm AEDT Monday to Friday to arrange a credit card payment over the phone.
Please note that all exemption applications can now be selected for a Level 2 Audit to ensure that the details for the exemption application are correct and comply with the BEED Act.