Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016

The Determination rests on a few tightly drawn legal concepts and measurement rules. These are stated in the text and determine operational scope.

• Disclosure affected building / disclosure affected area of a building. The Determination supplies the substantive tests that convert those statutory terms in the Act into concrete coverage rules (s5 and s6). The tests are twofold: a use‑mix test (the 75% rule) measured by NLA/GLA and a size threshold measured by NLA/GLA (2000 sqm or 1000 sqm depending on the relevant date). For Areas, the use‑mix test is applied at the building level and the size calculation is applied to the Area (s6(2)-(3)). That means an Area cannot be disclosure affected unless the building overall meets the 75% test.

• Net Lettable Area (NLA) and Gross Lettable Area (GLA). The Determination fixes these terms to the Property Council of Australia’s March 1997 Method of Measurement for Lettable Area, as in force at commencement (s4). NLA is the primary metric; GLA is available as a fallback only where NLA is not available (s5(2)-(3); s6(2)-(3)). That choice governs how size and percentage calculations are performed.

• Activity‑type test. Coverage depends on whether at least 75% of the space is used for administrative, clerical, professional or similar information‑based activities, including support facilities for those activities (s5(2)(a); s6(2)(a)). The Determination does not further define each of those activity categories inside the text, but it expressly includes support facilities within the measurement of “space… for administrative, clerical, professional or similar information‑based activities” (s5(2)(a); s6(2)(a)).

• Support Facility. The Determination defines Support Facility as a part of a building that: (a) is not used for administrative, clerical, professional or similar information‑based activities; (b) is available to support those activities; (c) occupies a space that is Fit to be Used for those activities; and (d) is exclusively for the use of office tenants (s4). The definition therefore brings certain non‑office functions into the coverage calculation where they are dedicated to supporting office activity and meet the four criteria.

• Temporal thresholds and exemptions. The size thresholds are time‑dependent: the higher 2000 sqm threshold applies from commencement until 1 July 2017, and the lower 1000 sqm threshold applies from 1 July 2017 (s5(2)-(3); s6(2)-(3)). Specific exemptions remove buildings or Areas from coverage: new buildings with no Certificate of Occupancy or with one less than two years old (s5(4); s6(4)); buildings that have had a Major Refurbishment where a Certificate of Occupancy is less than two years old (s5(5); s6(5)); and buildings or Areas held under a strata title system (s5(6); s6(6)). "Major Refurbishment" is referred to the Building Energy Efficiency Disclosure Regulations 2010 (s4).

• Certificate of Occupancy. The Determination treats a Certificate of Occupancy, however described, issued by a local authority under a State or Territory law, as evidence regarding whether a building is new or whether a refurbishment date triggers the exemption (s4; s5(4)-(5); s6(4)-(5)). The Certificate is therefore a procedural hinge for the exemptions in s5 and s6.

These concepts together determine the legal filter that converts the statutory disclosure obligation into a set of buildings and areas that must comply with the Act. The Determination interlocks measurement, land‑use classification, documentary evidence and time‑based thresholds.

The Determination assigns coverage by reference to the physical characteristics and use of buildings and Areas of Buildings. The immediate operational effect is that owners, occupiers and prospective lessors or vendors of commercial office‑type space will need to determine whether the building or Area is disclosure affected under the Act, by applying the Determination’s tests.

• Owners and vendors. Where a whole building meets the 75% administrative/office use test and exceeds the size threshold (2000 sqm until 30 June 2017; 1000 sqm from 1 July 2017), the building is disclosure affected (s5(2)-(3)). Owners and those offering to let, sublet, lease or sublease will therefore be the operational parties who must ensure the Act’s disclosure requirements are satisfied when marketing or transacting, since the Determination links coverage to that class of space and area characteristics. The Determination itself requires the owner or party offering space to know and use NLA/GLA metrics (s4, s5).

• Tenants, prospective tenants and occupiers. Tenants or prospective tenants in a building or Area that is disclosure affected will be parties to leasing or sale processes where the Act’s disclosure obligations come into play. The Determination’s inclusion of support facilities that are exclusively for office tenants (s4) means shared services dedicated to office occupants can bring additional floor area into the measurement that determines whether the building or Area is covered.

• Managers and valuers. Property managers, asset managers and valuers who prepare marketing material or fitness‑for‑let reports will be affected because the tests rely on measurement (NLA/GLA) and on classification of space by activity type. They must apply the PCA measurement standard (s4) and the 75% activity test at building level where Areas are considered (s6(2)(a)).

• Strata owners and title administrators. Buildings or Areas held under a strata title system are carved out from being disclosure affected (s5(6); s6(6)). That exclusion means owners of strata‑titled office premises will not be subject to the Act’s disclosure triggers as a consequence of this Determination. Those who administer strata plans must confirm title arrangements to determine whether the exemption applies.

• Regulators and local authorities. Local authorities issuing Certificates of Occupancy under State or Territory law are indirectly implicated because the Certificate is the evidence used for exemptions (s4; s5(4)-(5); s6(4)-(5)). The Determination therefore makes the existence and date of such a Certificate relevant to federal disclosure coverage.

• Firms undertaking refurbishments and developers. The Determination excludes buildings that have had a Major Refurbishment where the Certificate of Occupancy is less than two years old (s5(5); s6(5)). Developers and refurbishment contractors will therefore be parties whose work and the timing of Certificates of Occupancy influence whether a building moves into or out of coverage.

Who pays and who decides: building owners and those offering to let/lease will bear the compliance costs when a building or Area is disclosure affected because they are the ones making offers to lease or sell space. The Minister (Josh Frydenberg) made the Determination under the Act (instrument header and opening sentence), but the operational decisions required to comply fall to owners, managers and tenants who must apply the measurement and activity tests and collect certificates and records (s2-s6).

The Determination does not itself impose the Act’s disclosure duties; rather, it identifies which buildings and Areas are "disclosure affected" so that the Act’s duties apply. The Determination therefore creates conditional legal consequences: once a building or an Area is within the Determination’s tests, the Act’s obligations attach.

• Duty‑triggering function. The Determination’s core legal function is to trigger duties under the Act by classifying buildings and Areas as disclosure affected (s5; s6). It follows that the specific disclosure obligations (for example, provision of a Building Energy Efficiency Certificate, notification and disclosure when offering to lease or sell) remain those established by the Act. The Determination’s role is that of scope‑setting for those duties.

• Measurement duty. Persons determining whether a building or Area is disclosure affected must use Net Lettable Area as the primary measurement and Gross Lettable Area only where NLA is not available (s4; s5(2)-(3); s6(2)-(3)). The Determination fixes the Method of Measurement to the Property Council’s March 1997 document, so parties must apply that standard to establish NLA/GLA. That is an operational duty of accuracy and documentation.

• Classification duty. Parties must classify space by type of activity. The Determination requires the 75% test for administrative, clerical, professional or similar information‑based activities, inclusive of support facilities (s5(2)(a); s6(2)(a)). That is an interpretive duty: parties must identify which parts of the building are used for those activities and include support facilities that meet the definition.

• Documentary duty. For exemptions, parties have to rely on Certificates of Occupancy: a building is not disclosure affected if it is new and a Certificate of Occupancy has not been issued or is less than two years old; similarly for Major Refurbishment with Certificate of Occupancy less than two years old (s5(4)-(5); s6(4)-(5)). Therefore the right to claim an exemption depends on producing or referencing that certificate. The Determination makes the Certificate of Occupancy the documentary latch for the exemption.

• Right to exemption under strata title. Where a building or Area is held under a strata title system, the Determination grants a categorical non‑coverage outcome (s5(6); s6(6)). This is a legal right tied to the title regime, not to size or use.

• Right to fall‑back measurement. Where NLA is not available, parties have a right (and duty) to use GLA as a fallback for the calculations (s5(2)-(3); s6(2)-(3)). The Determination thus contemplates practical situations where NLA figures may not be present.

• Temporal rights and duties. The size threshold changes with time: the 2000 sqm test applies until 1 July 2017, and from that date the test becomes 1000 sqm (s5(2)-(3); s6(2)-(3)). This staging creates a window where buildings previously outside coverage become within coverage after the threshold lowers. Parties therefore have a temporal duty to reassess coverage as the date arrives.

Because the Determination is limited to defining scope, the legal obligations that follow , the content of disclosures, penalties for non‑compliance and the processes for obtaining Certificates or Certificates of Building Energy Efficiency as contemplated by the Act , are located in the Act itself. The Determination supplies the objective criteria that determine when those duties and rights under the Act begin to operate.

The Determination does not itself create penalties, sanctioning mechanisms or enforcement procedures. It is a scope instrument that designates which buildings or Areas are "disclosure affected"; the consequences for failing to meet the Act’s disclosure requirements are governed by the Building Energy Efficiency Disclosure Act 2010 and any regulations or administrative instruments that implement enforcement. The Determination therefore functions as a gatekeeper: it increases or decreases the population of buildings to which the Act’s penalty and enforcement regime applies.

• No penalties in the Determination text. The Determination contains no provisions imposing fines, civil remedies or criminal offences. It sets tests for coverage (s5 and s6) and definitions (s4), and provides commencement and repeal mechanics (s2-s3). Parties looking for prescribed penalties, enforcement powers or audit mechanisms will need to consult the Act itself and any subordinate instruments implementing enforcement.

• Enforcement trigger. By identifying a building as disclosure affected, the Determination triggers the Act’s enforcement framework for that building. The Determination therefore affects enforcement indirectly: when the lower threshold applies from 1 July 2017 (s5(3); s6(3)), more buildings will enter the Act’s regulatory perimeter and thus become subject to enforcement actions available under the Act.

• Evidentiary role of Certificates. The Determination makes the Certificate of Occupancy the relevant documentary evidence for certain exemptions (s4; s5(4)-(5); s6(4)-(5)). The existence and date on the Certificate will be material to an enforcement authority determining whether an exemption legitimately applies. Accuracy and production of such certificates will therefore affect enforcement outcomes.

• Interaction with Regulations for Major Refurbishment. The concept of Major Refurbishment that triggers certain exemptions is defined in the Building Energy Efficiency Disclosure Regulations 2010 (s4). Enforcement bodies determining whether a building is exempt on refurbishment grounds will rely on that Regulations’ definition and possibly on documentary or expert evidence about the works performed and the date of the Certificate of Occupancy.

• Administrative compliance risk. Because the measurement standard is an external document (the PCA Method of Measurement for Lettable Area, March 1997) and because exemptions turn on state/Territory Certificates, enforcement will require inter‑jurisdictional factual inquiries. The Determination does not set an administrative process for dispute, appeal or reassessment; those procedural matters remain with the Act and any implementing guidelines.

In short, the Determination expands or contracts the set of buildings subject to the Act’s enforcement architecture but leaves the content of sanctions and enforcement procedures to the parent Act and related instruments.

The Determination interfaces with at least three categories of legal instrument: the Building Energy Efficiency Disclosure Act 2010 (the parent statute), the Building Energy Efficiency Disclosure Regulations 2010 (for the Major Refurbishment definition), and State or Territory laws that govern Certificates of Occupancy and strata title systems.

• Relationship to the Act. The Determination is made under section 10 of the Act (instrument header), and its provisions are expressly for the purpose of specifying the kinds of buildings and Areas that are disclosure affected for subsections 10(1) and 10(2) of the Act respectively (s5 and s6). It is thus a statutory subordinate instrument that operationalises coverage for the Act. Any duty, right, penalty or procedural requirement that flows from a building being “disclosure affected” arises under the Act; the Determination only defines what it means in practice.

• Reference to the Regulations. The Determination imports the term Major Refurbishment from the Building Energy Efficiency Disclosure Regulations 2010 (s4). Thus, whether a particular project qualifies as a Major Refurbishment for the purpose of the exemptions in s5(5) and s6(5) depends on the regulatory definition and criteria in the Regulations. The Determination therefore requires cross‑reference to those Regulations for a complete legal assessment.

• State and Territory laws. The Determination relies on Certificates of Occupancy issued by local authorities under State or Territory law to trigger or deny exemptions (s4, s5(4)-(5), s6(4)-(5)). Because Certificates of Occupancy are state‑level instruments, differences in state practice , what the Certificate is called, when it is issued, the content it records , will affect how the Determination’s exemptions operate in practice. The Determination expressly allows Certificates to be "however described", which accommodates differing nomenclature across jurisdictions, but substantive differences in local practice may produce implementation complexity.

• Strata title systems established under State or Territory law. The Determination exempts buildings or Areas held under a strata title system established under state or territory law (s5(6); s6(6)). That creates a categorical intersection with state property law; whether a parcel is strata‑titled is a matter of state legislation and land titles records. Parties must therefore examine title arrangements in state registries to determine applicability.

• Private measurement standard. The Determination binds users to a private sector measurement standard (Property Council of Australia’s Method of Measurement for Lettable Area, March 1997) "as in force at the commencement of this Determination" (s4). This imports an external document into the federal legal framework. Its operation may be affected by any updates to the document after commencement being excluded by the phrase "as in force at the commencement of this Determination". The Determination also provides a website reference for the document (s4 Note).

• Interaction with leasing and marketing practices. The Determination’s tests apply to offer‑to‑let or invite‑to‑lease situations through their cross‑reference to the Act (see the Note in s4 referencing section 5 of the Act). That means existing state and common law rules about leasing, marketing disclosures and contractual warranties will interact with the new federal disclosure perimeter once a building is covered.

In essence, the Determination is a federal instrument that relies on state and private‑sector instruments for evidence, measurement and legal status; it thereby creates cross‑jurisdictional interfaces that parties must navigate to determine coverage and exemptions.

The Determination itself records a short amendment history within the instrument.

• Repeal of the 2015 Determination. Section 3 expressly repeals the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2015 (F2015L01074). That repeal establishes the 2016 Determination as the operative instrument replacing the 2015 text.

• Commencement timing. Section 2 provides that the Determination commences the day after registration. The instrument is dated 6 May 2016 and signed by the Minister for Resources, Energy and Northern Australia, Josh Frydenberg (instrument header and signature block). The explicit commencement provision fixes the effective date rule for the new tests and the repeal.

• Fixed measurement method at commencement. Section 4 fixes the Method of Measurement for Lettable Area "as in force at the commencement of this Determination", thereby locking the measurement standard to the March 1997 version as at commencement. That is a form of temporal amendment control , subsequent changes to that external document would not automatically vary the Determination’s measurement rule.

• Staged threshold change. The Determination contains an implicit historical amendment in that its own provisions change the applicable size threshold at a specified date. Up to 1 July 2017 the size threshold in s5(2) and s6(2) is 2000 sqm; from 1 July 2017 the threshold reduces to 1000 sqm (s5(3) and s6(3)). That is not an amendment recorded in a later instrument; it is part of the operative text that stages the policy change at a fixed date.

No other amendments, revocations or transitional provisions are recorded in the Determination text. There is no schedule of prior variations or savings clauses beyond the repeal of the 2015 Determination. The text does not record any amendment after the date signed; any such amendments would appear as separate instruments or subsequent determinations.

The text of the Determination contains no references to litigation, judicial interpretation or case law. It does not cite any judicial decisions, nor does it contain transitional provisions that reflect court rulings. Accordingly, on the basis of the Determination’s words alone, there is no litigation history recorded within the instrument.

Because the Determination functions as a scope‑defining subordinate instrument, disputes about its application , for example, contention over whether a given space qualifies as a Support Facility, the correct NLA/GLA measurement under the PCA method, whether a Certificate of Occupancy exists or its date, or whether works constitute a Major Refurbishment under the Regulations , could be litigated in future. But any such litigation and its outcomes are not contained in, or reflected by, the Determination’s text. Parties seeking precedent or interpretive guidance must therefore look to subsequent administrative determinations, guidance issued under the Act, or judicial decisions interpreting the Act and its subordinate instruments; none of those are included in this Determination.

The Determination contains several technical features and procedural risks that can create traps for parties who apply it mechanically without careful documentary and factual analysis. These are concrete operational issues grounded in the instrument’s text.

• Building‑level 75% test for Areas. For an Area of a Building to be disclosure affected, the Determination requires that at least 75% of the space in the building (by NLA or GLA) is for administrative/office‑type activities, and then applies the size threshold to the Area (s6(2)(a)-(b); s6(3)(a)-(b)). That means an Area situated in a mixed‑use building where the building as a whole does not meet the 75% test will not be disclosure affected even if the Area itself is large and predominantly office use. Parties must therefore compute the building‑wide percentage, not just the Area percentage.

• NLA primary, GLA fallback. The Determination requires the use of NLA, with GLA only used if NLA is not available (s4, s5(2)-(3), s6(2)-(3)). In practice, many buildings have only GLA figures on file. Relying on GLA without establishing that NLA is unavailable risks an incorrect determination. Parties should be alive to the fact that the PCA March 1997 method is prescribed and that converting between different measurement methods may require professional measurement.

• Fixed measurement standard point in time. The Determination binds users to the PCA March 1997 Method "as in force at the commencement of this Determination" (s4). Any later revisions to the PCA method will not change the Determination’s measurement standard. That locking can create mismatch between current industry practice and the legal standard, and may complicate comparisons with more recently measured area figures.

• Certificate of Occupancy nomenclature and provenance. The Determination accepts a Certificate of Occupancy "however described" issued by a local authority under state or territory law (s4). The Determination does not set out standards for what counts as a Certificate beyond that description. Differences between states in the name, form, content and timing of occupancy certificates can create uncertainty about whether an exemption applies. Parties must therefore ensure documentary sufficiency relative to the issuing local authority’s practice.

• Major Refurbishment definition is external. The exemption for recent major refurbishment depends on the Regulations’ definition of Major Refurbishment (s4; s5(5); s6(5)). The Determination does not include that definition, so parties must consult the Regulations. If the refurbishment does not meet the Regulations’ threshold, the exemption will not apply.

• Strata title exemption is categorical. Any building or Area held under a strata title system established under state or territory law is not disclosure affected (s5(6); s6(6)). That categorical removal can catch parties unaware where title arrangements are complex, for example in mixed ownership schemes that combine strata lots with a building‑level common property structure. Determining whether the exemption applies requires title searches and legal analysis of the relevant strata scheme.

• Support Facility inclusion criteria are conjunctive. The definition of Support Facility has four conditions, including that it is not used for administrative activities, that it is available to support those activities, that it is Fit to be Used for those activities, and that it is exclusively for the use of office tenants (s4). The conjunctive nature means a support area that is also used by non‑office tenants or that is not "Fit to be Used" for administrative tasks may not be included. Parties must apply the definition precisely rather than assuming incidental facilities are counted automatically.

• Temporal reassessment required. Because the size threshold drops from 2000 sqm to 1000 sqm on 1 July 2017 (s5(2)-(3); s6(2)-(3)), buildings and Areas that were not disclosure affected before that date may become disclosure affected afterwards. Owners and managers need to reassess at that date to determine new obligations.

• Evidence burden for exemptions. The Determination ties exemptions to Certificates of Occupancy dated within two years (s5(4)-(5); s6(4)-(5)). Parties asserting an exemption must hold documentary evidence of the Certificate and its date. The Determination does not prescribe what documentary form suffices beyond the Certificate being issued by a local authority.

• No procedural guidance in the Determination. The instrument does not outline administrative routes for dispute, correction, or review of coverage decisions. That absence means parties must look to the Act, Regulations and any agency guidance for process, and may face administrative uncertainty in the interim.

These are practical "gotchas" rather than normative criticisms: each is derived from the text’s precise drafting and from the way the Determination links federal coverage to state documents and private measurement standards.

To determine compliance steps, a practitioner should treat the Determination as a threshold‑setting instrument that requires a factual and documentary assessment. The following checklist is grounded in the Determination’s provisions and indicates the concrete steps owners, managers or occupiers should take.

1. Confirm commencement and dates. Note that the Determination commenced the day after registration (s2). The operative size thresholds depend on date: until 1 July 2017 the threshold is 2000 sqm, from 1 July 2017 it is 1000 sqm (s5(2)-(3); s6(2)-(3)). Reassess coverage at 1 July 2017.

2. Identify the measurement metric available. Determine whether Net Lettable Area figures exist. If NLA is available use it; if not, use Gross Lettable Area as the fallback (s4; s5(2)-(3); s6(2)-(3)). Make sure the source of NLA/GLA data is documented.

3. Apply the prescribed measurement method. The Determination requires the Method of Measurement for Lettable Area (Property Council of Australia, March 1997) "as in force at the commencement" (s4). Obtain that March 1997 PCA document and apply its rules to compute NLA/GLA. Where third‑party area figures are used, ensure they reference the PCA method or document the conversion.

4. Classify space by use. For the building as a whole, determine the proportion of space (by NLA/GLA) that is for administrative, clerical, professional or similar information‑based activities, including support facilities (s5(2)(a); s6(2)(a)). Prepare a written schedule of floor areas by use category, showing the calculations. For Areas, remember the 75% test is applied at the building level (s6(2)(a); s6(3)(a)) and the size threshold to the Area itself (s6(2)(b); s6(3)(b)).

5. Identify Support Facilities. Where non‑office spaces might be "Support Facilities", test each against the four criteria in the definition: not used for administrative activities; available to support those activities; occupies space Fit to be Used for those activities; and exclusively for the use of office tenants (s4). Document the factual basis for each criterion.

6. Check title and ownership regime. Confirm whether the building or the Area is held under a strata title system under state or territory law. If so, the building or Area is not disclosure affected (s5(6); s6(6)). Obtain title searches and strata plan documentation to evidence the exemption.

7. Obtain Certificates of Occupancy. For new buildings or where a Major Refurbishment has occurred, obtain the relevant Certificate(s) of Occupancy issued by local authority. If no Certificate has been issued, or if the Certificate is less than two years old, the building or Area is exempt (s5(4)-(5); s6(4)-(5)). Keep certified copies and record issuance dates.

8. Check Major Refurbishment status. If building works have taken place, review the Building Energy Efficiency Disclosure Regulations 2010 to determine whether those works amount to a Major Refurbishment for the exemption in s5(5) and s6(5). Document the scope of works and Certificates.

9. Recompute on any material change. If the building’s use mix, lettable area, occupancy, or title status changes, recompute the tests. The Determination’s thresholds and tests are factual; changes in tenancy, refurbishments, or title restructuring can move a building into or out of coverage.

10. Keep a compliance file. Maintain a compliance pack that contains: the PCA March 1997 measurement documentation and the applied calculations; a floor area schedule and use classification; title and strata documents; Certificates of Occupancy; refurbishments records; and dated assessments showing whether, and from what date, the building or Area is disclosure affected. Because the Determination itself does not set enforcement procedure, this documentation will be the primary evidence relied on if any question arises under the Act.

11. Coordinate with leasing and marketing workflows. Because the Act’s disclosure obligations apply when offering to let or sublet or inviting offers to lease or sublease (see s4 Note referencing section 5 of the Act), integrate the Determination’s coverage assessment into marketing approvals, leasing checklists and transaction due diligence procedures.

12. Seek regulatory guidance if uncertain. The Determination leaves several interpretive questions to the Act, the Regulations and state law (e.g. Major Refurbishment, what counts as a Certificate of Occupancy in a particular jurisdiction). Where an outcome is material to a transaction, obtain written guidance from the administering federal agency or, if necessary, legal advice. Keep any such guidance in the compliance file.

These steps follow directly from the Determination’s drafting. The primary compliance burdens are factual measurement and documentary assembly; the principal rights are the narrow exemptions the Determination provides for new buildings, recent major refurbishments and strata‑titled properties (s5(4)-(6); s6(4)-(6)).