The Welsh Ministers (Transfer of Functions) ( No. 2) Order 2009

• Citation: S.I. 2009/3019
• Sections: 17

Section 1 Citation, commencement and interpretation

(1) This Order may be cited as the Welsh Ministers (Transfer of Functions) (No. 2) Order 2009.

(2) This Order shall come into force on 31st December 2011.

(3) In this Order—

“the 1984 Act ” means the Building Act 1984 ;

“the 2000 Regulations ” means the Building Regulations 2000 ;

“the 2007 Regulations ” means the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 ;

“the construction EPC provisions” means—

regulation 17E of the 2000 Regulations (energy performance certificates);

regulation 12 of the Building (Approved Inspectors etc. ) Regulations 2000 (energy performance certificates); and

regulation 9 of the 2007 Regulations (construction of Crown and statutory undertakers’ buildings);

“excepted energy building” is defined by the Schedule.

Section 2 Transfer of functions

The following functions are, so far as exercisable in relation to Wales, transferred to the Welsh Ministers—

(a) functions conferred or imposed on the Secretary of State by or under the 1984 Act , subject to articles 3 and 4;

(b) functions of the Secretary of State under—

(i) section 6 of the Sustainable and Secure Buildings Act 2004 (Secretary of State to report on building stock); and

(ii) section 14 of the Climate Change and Sustainable Energy Act 2006 (report regarding compliance).

Section 3 Transfer of functions

Article 2(a) does not transfer—

(a) any functions so far as they are exercisable in relation to an excepted energy building;

(b) functions under section 44(5) of the 1984 Act (functions exercisable by the Secretary of State as a Crown authority); or

(c) functions under section 42(7) or 134(1) of the 1984 Act (power of the Secretary of State to appoint a day for a modification to cease to have effect or for a provision to come into force).

Section 4 Transfer of functions

(1) The transfer by article 2(a) of functions under Part 5A of the 2000 Regulations (energy performance of buildings) is subject to the following provisions.

(2) Functions under regulation 17A (methodology of calculation and expression of energy performance) are transferred only so far as they are exercisable for the purposes of—

(a) regulation 17B (minimum energy performance requirements for buildings); and

(b) the construction EPC provisions.

(3) Functions under regulation 17F (energy assessors) are transferred only so far as they are exercisable in relation to the functions of energy assessors under, or in relation to, the construction EPC provisions.

Section 5 Powers to confer or impose functions

(1) Any pre-commencement power to confer or impose a relevant function on the Secretary of State shall have effect as a power to confer or impose the function on the Welsh Ministers, the First Minister or the Counsel General.

(2) For the purposes of paragraph (1)—

(a) a pre-commencement power is a power which was exercisable immediately before 31st December 2011; and

(b) a relevant function is a function which, had it been a function of the Secretary of State immediately before 31st December 2011, would have been transferred to the Welsh Ministers by article 2.

Section 6 Modifications to the 2007 Regulations—disclosure of documents and data

(1) The 2007 Regulations are modified as follows in relation to—

(a) a relevant document;

(b) data collected or used for the purpose of preparing a relevant document; and

(c) information derived from a relevant document.

(2) Regulation 14(2)(f) (purposes for which certificates and recommendation reports may be disclosed to the Secretary of State) shall have effect as if the reference to the Secretary of State included the Welsh Ministers.

(3) Regulation 37 (disclosures to the Secretary of State) shall have effect as if the references to the Secretary of State for Communities and Local Government included the Welsh Ministers.

(4) For the purposes of paragraph (1), a relevant document is an energy performance certificate or recommendation report—

(a) relating to a building in Wales other than an excepted energy building; and

(b) prepared for the purposes of the construction EPC provisions.

Section 7 Transfer of property, rights and liabilities—exception

Paragraph 1(1) of Schedule 4 to the Government of Wales Act 2006 (transfer of property, rights and liabilities connected with transferred functions) does not apply to any documentary or electronic records to which the Secretary of State is entitled at the coming into force of this Order in connection with any function exercisable by the Secretary of State which is transferred by this Order.

Section 8 Amendments to section 14 of the 1984 Act

(1) Section 14 of the 1984 Act (consultation with Building Regulations Advisory Committee and other bodies) is amended as follows.

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(5) After subsection (4) insert—

(5) The Welsh Ministers shall appoint a committee, to be known as the Building Regulations Advisory Committee for Wales, for the purpose of advising them on the exercise of their power to make building regulations, and on other subjects connected with building regulations.

(6) The Welsh Ministers may pay such expenses incurred by members of the Building Regulations Advisory Committee for Wales as the Welsh Ministers may determine.

(7) Before making any building regulations containing substantive requirements, the Welsh Ministers shall consult the Building Regulations Advisory Committee for Wales and such other bodies as appear to them to be representative of the interests concerned.

(8) Before making any building regulations containing provision of the kind authorised by paragraph 11(1)(c) of Schedule 1 to this Act, the Welsh Ministers shall consult—

(a) the Building Regulations Advisory Committee for Wales,

(b) such persons or bodies as appear to them to be representative of local authorities in Wales, and

(c) such other bodies as appear to them to be representative of the interests concerned.

Section 9 Transitional provision for members of the Building Regulations Advisory Committee

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Section 10 Amendment to the Parliamentary Commissioner Act 1967

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Section 11 Amendment to the Race Relations Act 1976

(1) The Race Relations Act 1976 is amended as follows.

(2) In Schedule 1A (bodies and other persons subject to general statutory duty), in Part 2 (bodies and other persons added after commencement of general statutory duty) , for “The Building Regulations Advisory Committee.” substitute—

The Building Regulations Advisory Committee for England.

The Building Regulations Advisory Committee for Wales.

Section 12 Amendment to the Public Services Ombudsman (Wales) Act 2005

(1) The Public Services Ombudsman (Wales) Act 2005 is amended as follows.

(2) In Schedule 3 (listed authorities), after the sub-heading “Miscellaneous” insert “The Building Regulations Advisory Committee for Wales.”.

Section 13 Amendment to the Race Relations Act 1976 (Statutory Duties) Order 2001

(1) The Race Relations Act 1976 (Statutory Duties) Order 2001 is amended as follows.

(2) In Schedule 3 (bodies and other persons excepted by article 5(5)(b)), for “The Building Regulations Advisory Committee.” substitute—

The Building Regulations Advisory Committee for England.

The Building Regulations Advisory Committee for Wales.

Section 1

An excepted energy building is a building that satisfies the first and second conditions set out below.

Section 2 First condition

The first condition is that the building falls within one of the following descriptions—

(a) a generating station whose construction, extension or operation requires or required the consent of the Secretary of State under section 36 of the Electricity Act 1989 or any ancillary development;

(b) a generating station whose construction or extension requires or required development consent;

(c) an electric line whose installation, or continued installation, above ground requires the consent of the Secretary of State under section 37 of the Electricity Act 1989 or any ancillary development;

(d) an electric line whose installation above ground requires or required development consent;

(e) a pipe-line whose construction requires or required authorisation under section 1(1) of the Pipe-lines Act 1962 or development consent; or

(f) a facility for the storage of gas underground in natural porous strata by a gas transporter or surface works or pipes associated with such a facility.

Section 3 Second condition

The second condition is that the building is not used, or not to be used, entirely as one or more of the following—

(a) a residence;

(b) a shop;

(c) an office;

(d) a showroom;

(e) a canteen; or

(f) an outbuilding ancillary to a building used, or to be used, entirely for one or more of the purposes set out in sub-paragraphs (a) to (e).

Section 4 Interpretation

In this Schedule—

“ancillary development” has the same meaning as in section 90(2) of the Town and Country Planning Act 1990 ;

“development consent” means development consent under the Planning Act 2008 ;

“gas transporter” has the same meaning as in Part 1 of the Gas Act 1986 ;

“outbuilding” means a shed, greenhouse, summerhouse, garage or similar building that is not attached to any other building other than another outbuilding;

“residence” includes—

a dwelling-house;

a flat and any common parts;

a room used for residential purposes and any common parts;

“room used for residential purposes” means a room or a suite of rooms which is not a dwelling-house or a flat and which is used by one or more persons to live and sleep.