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15 July 2014 NABERS Certification: Don't get caught on the wrong side of the fence

By Wendy Conceicao, Senior Associate and Daniel Kentwell, Paralegal


In Brief

With the commercial property market heating up, if you are a vendor or a lessor you should ensure that your building has appropriate NABERS certification in place. The Commercial Building Disclosure (CBD) Program requires vendors and landlords of disclosure-affected buildings to obtain a Building Energy Efficiency Certificate (BEEC), before the building goes on the market for sale, lease or sublease.


What is a disclosure affected building?

Normally, a building will be disclosure-affected if that building is:

  1. a commercial office building with a net lettable area of greater than 2,000 m2;
  2. used for administrative, clerical, professional or other information-based activities and includes any support facilities for those activities; and
  3. for sale, lease or sublease.
What buildings are not affected?

A building may not be disclosure-affected if that building is:

  1. a mixed-use building with less than 75% net lettable office space area; 
  2. a new building, where there is a certificate of occupancy less than 2 years old;
  3. strata-titled;
  4. transferred through the sale of shares or units of interest;
  5. leased on a short term lease, (i.e. for a period of less than 12 months); or
  6. leased by exercising an option to renew or extending an existing lease.
What does a vendor or landlord do if the building is disclosure affected?

If a building is disclosure-effected, the vendor or landlord will require a Building Energy Efficiency Certificate (BEEC) before the building is placed on the market for sale or lease. BEECs include the building’s National Australian Built Environment Rating System (NABERS) Energy star rating, a tenancy lighting assessment of the relevant area of the building and general energy efficiency guidance.  The building's NABERS rating will also need to be included on all advertising material.

A BEEC is valid for 12 months, must be publically accessible on the online BEEC register and must include:

  1. a NABERS Energy star rating for the building;
  2. an assessment of the energy efficiency of tenancy lighting in the area of the building that is being sold or leased; and
  3. general energy efficiency guidance.

To obtain a BEEC, a CBD accredited assessor must be engaged. Information on accredited CBD assessors can be found at: http://www.cbd.gov.au/registers/find-a-cbd-accredited-assessor

What penalties apply for non compliance?

The Penalties for failing to comply with the Building Energy Efficiency Disclosure Act are costly and can include fines of up to $170,000.

In order to avoid these costly penalties, a vendor or lessor of a disclosure-effected must not:

(a)        offer, or continue to offer, to sell a building;
(b)        invite offers, or continue to invite offers, to purchase a building;
(c)        offer, or continue to offer, to let a building; or
(d)        invite offers, or continue to invite offers, to lease a building unless there is a valid, current and registered BEEC for the building.

Moving forward

If you are a vendor or lessor and you are unsure if your building is disclosure-effected or have any questions generally with respect to CBD or BEEC compliance, please contact:

Wendy Conceicao, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: wsc@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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