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This is not an exhaustive list of our specialist areas. We are always happy to consider any legal matter which you may have. At McBurney & Co we are also pleased to offer a Mediation service. For further information and advice, please do not hesistate to contact us. 

Home arrow Legislative Developments
Legislative Developments
Significant statutory instruments
A cynical ploy to win votes or a triumph of economic brilliance worthy of John Maynard Keynes: you decide. In his 2008 Pre-Budget Report, Darling Alistair announced that VAT would be lowered from 17.5 per cent to 15 per cent. This move is implemented by the Value Added Tax (Change of Rate) Order 2008, SI 2008/3020 which reduces the percentage of tax payable under the Value Added Tax Act 1994, s 2(1), between 1 December 2008 and 30 November 2009. This is the first ever order to be made under s 2(2) of the Act, which allows the Treasury to increase or decrease the rate of VAT by a percentage of up to 25 per cent of the current rate for up to one year. The upcoming change works out as 142/7 per cent. The government expects the reduction to inject £3.8 billion into the economy by next April and a further £8.6 billion in 2009-10. They also estimate that it will cost the 2 million VAT-registered businesses £50 million to change their prices in response to the reduction. For unexplained reasons, it will apparently only cost them £45 million to put the prices back up when VAT becomes chargeable at 17.5 per cent again next year.
 
Budget 2008 - some aspects to ponder

Capital gains tax

The capital gains tax (CGT) annual exempt amount is increased in line with statutory indexation to £9,600 for the tax year 2008-09 for individuals, personal representatives of deceased persons and trustees of certain settlements for the disabled. The annual exempt amount for most other trustees is increased to £4,800.

Every husband, wife, civil partner and child has his or her own £9,600 annual exempt amount.

For gains above the annual exempt amount the CGT rate for 2008-09 will be 18 per cent. In addition, a new entrepreneurs' relief will reduce the effective tax rate on some gains to 10 per cent. 

Inheritance tax

As announced in Budgets 2006 and 2007, the inheritance tax allowance will be increased in each of the next three years. The allowance for the tax year 2008-09 is £312,000 for individuals or £624,000 for married couples and civil partners; for 2009-10 it will be £325,000 for individuals or £650,000 for married couples and civil partners; and for 2010-11 it will be £350,000 for individuals or £700,000 for married couples and civil partners. The value of estates over and above the allowance is taxed at 40 per cent. The proportion of estates forecast to pay inheritance tax in 2008-09 is 5%.

Corporation tax

As announced in the major package of reforms to the business tax system at Budget 2007, the main rate in Corporation Tax will be reduced from 30% to 28% from this April. This package also announced that in 2008-09 the Small Companies rate will increase from 20 per cent to 21 per cent.

Capital Allowances

From 1 April 2008 for corporation tax and 6 April 2008 for income tax, changes will apply to the rates of capital allowances. Allowances for plant and machinery will reduce to 20%, allowances for long-life assets will increase to 10% and a new classification of features integral to a building will be introduced at a rate of 10%. The amount of relief claimable under industrial and agricultural buildings allowances will be reduced by one quarter, as part of phasing them out in full by 2011. First-year allowances for small and medium-sized enterprises will be replaced by a new Annual Investment Allowance of £50,000 for most businesses regardless of size, giving relief on 100% of the first £50,000 of expenditure.

Loss making companies investing in plant and machinery which qualifies for Enhanced capital allowances for environmentally beneficial and energy saving technologies will be able to surrender losses from qualifying expenditure for a cash payment of 19% of the expenditure, subject to a cap of the higher of £250,000 or a company’s PAYE/National Insurance Contributions liabilities.

From April 2008, the rate of research and development tax credits will rise from 125% to 130% for large companies and from 150% to 175% for SMEs (the SME increase is subject to approval from the European Commission and will be made effective by Treasury Order from a date not earlier than 1 April 2008).

Stamp taxes and duty

The rates and thresholds for stamp duty land tax (SDLT) remain unchanged.

For residential land and property, the rates are 0 per cent for transactions of £125,000 or less, 1 per cent for over £125,000 to £250,000, 3 per cent for over £250,000 to £500,000 and 4 per cent for over £500,000. The 0 per cent band for residential transfers in designated disadvantaged areas extends to £150,000. For non-residential land and property, the rates are 0 per cent for transactions of £150,000 or less, 1 per cent for over £150,000 to £250,000, and thereafter the same as for residential land and property.

For new leases, the rates applicable in respect of the premium are the same as for transfers of land and buildings (except that special rules apply where the rent exceeds £1,000 annually for non-residential land and property. The £600 threshold has been abolished for residential land and property with effect from 12 March 2008).

For the rental element of new leases, the charge is based on the net present value (NPV), which is the total of the discounted annual rental payments. The NPV is charged at 1 per cent on the excess over £125,000 for residential land and property and 1 per cent on the excess over £150,000 for non-residential land and property.

 
Legislation - some recent developments

Budget Act 2008

http://www.opsi.gov.uk/legislation/northernireland/acts/acts2008/

pdf/nia_20080003_en.pdf

 

Disabled Persons

The Disability Discrimination (Private Clubs, etc.) Regulations2008 No. 81

http://www.opsi.gov.uk/sr/sr2008/nisr_20080081_en_1

 

Education

The Education (Student Loans) (Repayment) (Amendment) Regulations2008 No. 129

http://www.opsi.gov.uk/sr/sr2008/nisr_20080129_en_1

The Special Educational Needs and Disability (General Qualifications Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features)

Regulations2008 No. 79

http://www.opsi.gov.uk/sr/sr2008/nisr_20080079_en_1

 

Employment

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations2008 No. 76

 

Environmental Protection

The Waste (Amendment) (2007 Order) (Commencement No.2) Order2008 No. 75

http://www.opsi.gov.uk/sr/sr2008/nisr_20080075_en_1

 

Family Law

The Child Support (Miscellaneous Amendments) Regulations2008 No. 119

http://www.opsi.gov.uk/sr/sr2008/nisr_20080119_en_1

 

Health and Personal Social Services

The Health and Personal Social Services (Assessment of Resources) (Amendment) Regulations2008 No. 91

http://www.opsi.gov.uk/sr/sr2008/nisr_20080091_en_1

The Health and Personal Social Services (Superannuation Scheme and Compensation for Premature Retirement) (Amendment) Regulations2008 No 96

http://www.opsi.gov.uk/sr/sr2008/nisr_20080096_en_1

The Optical Charges and Payments (Amendment) Regulations2008 No. 128

http://www.opsi.gov.uk/sr/sr2008/nisr_20080128_en_1

 

Health Services Charges 

The Recovery of Health Services Charges (Amounts) (Amendment) Regulations2008 No. 90

http://www.opsi.gov.uk/sr/sr2008/nisr_20080090_en_1

 

Pensions

The Guaranteed Minimum Pensions Increase Order2008 No. 84

http://www.opsi.gov.uk/sr/sr2008/nisr_20080084_en_1 

The Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations2008 No. 97

http://www.opsi.gov.uk/sr/sr2008/nisr_20080097_en_1

The Occupational Pension Schemes (Internal Dispute Resolution Procedures) (Consequential and Miscellaneous Amendments) Regulations2008 No. 116

http://www.opsi.gov.uk/sr/sr2008/nisr_20080116_en_1 

The Pensions (2005 Order) (Commencement No. 11) Order2008 No. 104

http://www.opsi.gov.uk/sr/sr2008/nisr_20080104_en_1

 

Road Traffic and Vehicles

The Motor Vehicle Testing (Amendment) Regulations2008 No. 109

http://www.opsi.gov.uk/sr/sr2008/nisr_20080109_en_1

 

Safeguarding Vulnerable Groups

The Safeguarding Vulnerable Groups (2007 Order) (Commencement No. 1) Order2008 No. 127

http://www.opsi.gov.uk/sr/sr2008/nisr_20080127_en_1

 

 
Energy Performance Certificates

Energy Performance Certificates will affect us all this year.  From the end of June they will be required when a home is marketed for sale and from the end of September they will be required for all newly constructed buildings.  Finally, from the end of December they will be required for commercial buildings marketed for sale and for commercial premises and residential buildings being offered for rental, thus becoming compulsory whenever a building is constructed, sold or rented out.

 

Background 

Following the European Union’s decision to take action against the United Kingdom for failing to comply with the European Directive on energy performance in Northern Ireland, the authorities here have been forced to act quickly.  The Northern Ireland Assembly has recently passed Statutory Regulations to implement the terms of the European Directive in Northern Ireland.

FAQs

Why are Energy Performance Certificates (EPCs) being introduced?EPCs have been introduced to comply with the European Directive 2002/91/EC on energy efficiency. The Directive lays down a common methodology to measure energy performance of buildings throughout the European Union and the EPC is the certification document required.

To implement the Directive in Northern Ireland, The Energy Performance of Buildings (Certificates and Inspections) Regulations (NI) 2008 were made on 9 April 2008 (SR 2008 No 170). These Regulations are available for download from the following link: - http://www.opsi.gov.uk/sr/sr2008/pdf/nisr_20080170_en.pdf

What information is on an EPC? An EPC gives details of the energy efficiency of a building. This is calculated from its structure and energy management systems. The ratings range from A (very efficient) to G (very inefficient). The certificate also shows a score from 1 to 150 with lower scores indicating lower CO² emissions. The EPC must be accompanied by a recommendation report detailing measures to improve the energy efficiency of the building. Other information required describes briefly the building and details about the energy assessor who supplied the certificate together with accreditation details.

 

When do the Regulations come in to effect? The timetable for the implementation of the Regulations in respect of EPC’s is as follows: - 
                Commencement Date 
 

Dwellings

 

Sale30 June 2008
New builds30 September 2008
Rental30 December 2008

 

Buildings other than dwellings
Sale30 December 2008

 

New builds

 

30 September 2008

 

Rental

 

30 December 2008
Accordingly the sales of existing residential properties will be affected from 30 June 2008.  The precise date when a dwelling is placed on the market for sale is not material. The provision applies to all existing dwellings which are on the market for sale after 30 June 2008, irrespective of how long they have been on the market. For the timetable for certificates in relation to the inspection of air-conditioning systems, see the Building Regulation website referred to at the end of this article. 

 

Are there any exemptions? EPCs are not required for buildings used as places of worship, certain temporary buildings, for industrial sites, workshops and non-residential agricultural buildings with low energy demand and for stand alone buildings smaller that 50m² which are not dwellings.  Also, if a building is to be demolished after sale, an EPC will not be required. 

 

What is the position about parts of buildings such as a block of flats? An EPC can be supplied based on a representative apartment or unit in the same block, or, except in the case of a dwelling, on a common certification of the whole building for blocks with a common heating system. 

 

What other reports and documents have been introduced? A Display Energy Certificate is required for any building which has a floor area over 1000m², is occupied by public authorities or other bodies providing public services and which is frequently visited by members of the public. These must be prominently displayed to members of the public. The occupier must also possess an advisory report, which details improvements to the energy efficiency of the building. The Regulations also require five yearly inspections of air conditioning systems with an output exceeding 12kW, for which an inspection report must be issued. A cooling unit in a typical office room is 5-6kW so that two such units may escape inspection. Larger units usually found in retail premises are likely to have a 10-15kW output. 

 

Which of the parties to a property transaction must supply an EPC? For a sale, the seller must supply the EPC. For rental of properties, it is the prospective landlord. For buildings under construction, it is the person responsible for having the construction work carried out.

 

For Display Energy Certificates, the occupier is the responsible party. For air conditioning reports, responsibility rests on the person with control of the operation of the system.

 

In the course of a property transaction, to whom is an EPC supplied? The EPC must be made available free of charge to any prospective buyer or tenant at the earliest opportunity and in any event, before entering a contract for sale, renting or building. A person viewing a building or who has requested in writing information about a building should be given an EPC at that stage. Copies and electronic read only certificates may be supplied. 

 

How much will an EPC cost? Prices are not fixed by Regulations or by any government body. Energy assessors who supply certificates will compete with each other so the market will ultimately decide.  In England and Wales prices are less than £100 but direct comparison is not possible as EPCs there are supplied with Home Information Packs which are not required for Northern Ireland. For non-domestic buildings, the cost will be much higher for larger and more complex buildings. 

 

Does the issuing of an EPC impose any duty on the responsible parties to take action to improve the energy efficiency of properties based on the content of the report. No.  This is a matter for the existing regime of Building Control Regulations. The underlying purpose of the EU Directive is to provide information on energy efficiency in the expectation that this will assist and encourage people to take action. 

 

Who issues an EPC? An EPC is issued by an energy assessor who must be a member of an accreditation scheme approved by the Department of Finance and Personnel (DFP).  Accreditation schemes may be limited to certain categories of buildings for which an energy assessor may produce certificates and to types of air-conditioning systems which they may inspect. 

What does the DFP consider when deciding whether or not to approve an accreditation scheme? The DFP must be satisfied that members of an accreditation scheme carry out consistent and accurate assessments, are qualified by education, training and experience to provide assessments and have satisfactory indemnity arrangements in place.   

What controls exist for the validation of EPCs and the other documents and reports required under the Regulations? The DFP will nominate a person to keep a register for these purposes. An energy assessor must ensure that each document issued by him is entered on the register and it is given a unique reference number. It cannot be altered after registration and it will be retained for a period of at least 20 years from the date of registration. 

For how long is an EPC valid? Ten years. The EPC will therefore cover a series of transactions within that period.

 

What about enforcement? Part 7 of the Regulations deals with enforcement and makes provision for enforcement by way of civil penalties. Depending on the breach, these penalties range from £200 to £5000. 

Where can I get further information? Regulations are available at: http://www.opsi.gov.uk/sr/sr2008/pdf/nisr_20080170_en.pdf

Further information is also available on the DFP web site at:

www.buildingregulationsni.gov.uk

 

England and Wales have well-established accreditation schemes and their assessors may operate here and vice versa.

If you go to www.communities.gov.uk and enter the search term “epc” there is comprehensive information which also includes accredited schemes for existing buildings and other requirements
 
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