TM44 Inspections and who the responsible person is to ensure compliance with the Regulations?
In this article we provide guidance on when buildings need TM44 inspections and clarifying who the responsible person is to ensure compliance with the Regulations.
All buildings in England and Wales that have air-conditioning systems installed, and where the total installed cooling capacity of all the units is larger than 12kW, need to comply with Part 4 of The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2012.
To comply with the above Regulation, all qualifying buildings need to be in possession of a valid TM44 Air Conditioning inspection certificate and report, which was lodged on the Governments Landmark Register.
Air conditioning systems that exceed the 12kW installed cooling capacity required a first inspection by 4 January 2011, and every 5 years thereafter, and where the air conditioning system was commissioned on or after 1 January 2008, required a first inspection within five years of commissioning date, and every 5 years thereafter.
If the building has multiple split units installed which each have a cooling capacity of less than 12kW, but collectively they have a cooling capacity of larger than 12kW, then this system/building needs to be in possession of a valid TM44 air conditioning inspection certificate and report.
Clarifying who the responsible person is to ensure compliance with the Regulation
The person who has both technical and financial control of the air conditioning system is seen as the operator, and the responsible person to ensure compliance with this Regulation.
Ownership of an air conditioning system alone does not identify the operator.
Operator means the natural or legal person exercising actual power over the technical functioning of the air conditioning system and associated equipment.
The ‘actual power over the technical functioning’ of a piece of equipment or system should be understood as including all the following elements:
free access to the system and providing access to third parties to supervise its components and their functioning;
the control of the day to day functioning/running (e.g. take the decision to switch it on or off);
the power (including financial power) to decide on technical modifications (e.g. replacement of a component, installation of additional equipment), modification of the quantities of F-gases in the system or have repairs carried out.
If all these elements are devolved by the owner or landlord to a third party (e.g. tenant) through contractual arrangements, then the authority of operator and the responsibilities attached to it under Part 4 of The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2012 should be deemed transferred to that third party, provided that such a transfer is compatible with national law.
If the above elements are only partially transferred, the responsibilities of operator should not be deemed transferred.
Penalties for non-compliance with the Regulation will be applicable to the person recognised as the operator based on the contractual arrangements.
Depending on the terms of the contract, the FM or servicing company may accordingly become responsible under the Regulations. In such cases the landlord and/or tenant retain a parallel duty to ensure the air conditioning inspection has been done.
Regardless of the role of the FM or air conditioning service provider in relation to the operation and maintenance of air conditioning systems, they have a duty of care to inform landlords and/or tenants of their obligation to ensure compliance with this and all other regulatory requirements impacting their buildings and associated equipment and systems.
Does my building still require a TM44 air conditioning inspection if I recently replaced some key equipment?
TM44 inspections cover the total air conditioning and ventilation system and associated distribution and control systems, so if a component was replaced i.e. AHU or chiller then the building would still require a valid TM44 inspection certificate and report i.e. every 5 years from the date that the system was first commissioned.
The scope of the TM44 inspection covers the total air conditioning and ventilation system and associated distribution and control systems and includes the refrigeration plant, chilled water distribution systems, air movement systems (AHU’s, FCU’s etc) and associated air distribution systems, controls, maintenance practices and documentation, F-Gas inspections and documentation etc.