Legislating for sustainability

The UK government has high hopes for cutting carbon emissions, but it doesn’t look like we’re on course to meet these ambitious targets. But there are several areas of legislation to promote greater sustainability in construction which will drive the process forward.

The House of Commons Environmental Audit Committee in its report for 2003/2004 (published in July) highlighted the fact that the UK is not on course to meet the target it has committed itself to, to achieve carbon reduction of 20% below 1990 levels of carbon emissions by 2010. Accordingly, the Committee advocates more measures which promote renewable energy and energy efficiency in order to achieve the 2010 and future targets.

The amendments to the Building Regulations Part L must be seen in the context of climate change policy and targets. Building Regulations already include obligations to provide minimum insulation and comply with thermal rating specifications for heating systems. Standard Assessment Procedure (SAP) ratings to calculate the annual energy costs for a building and Carbon Indexes to calculate annual carbon emissions from buildings are set out in Part L and the government’s view is that energy or carbon calculation methods based on SAP should continue to be used as the basic method for establishing what is reasonable.

Thus it is hoped that by giving the construction industry and building owners targets to meet then this will mean that they will have greater flexibility with regard to the range of ways in which these targets can be met.

Part L also imposes obligations on owners upgrading existing premises to improve the thermal rating of their buildings. The government is confident that the construction of new dwellings will assist meeting its climate change targets particularly as building turnover is higher for dwellings compared to commercial properties.

The reverse side of the coin is that the highest level of emissions will continue to be generated from business premises. In 2000, carbon emissions from non-domestic buildings comprised approximately 20% of the national total of carbon emissions with offices, shops, hotels, industrial buildings and schools being the largest contributors. In this area the government has not taken up ideas to incentivise businesses and householders to purchase and install more energy efficient systems by allowing zero rating for vat.

For public service buildings, including schools and hospitals, rules on green procurement permit public authorities to give a higher weighting to contract bids for new build and refurbishment which go beyond Part L in achieving environmental improvement as part of any competitive tendering process.

Further obligations on the government to review energy performance are contained in the Energy Performance of Buildings Directive which must be transposed into UK Law by January 2006. The directive is interesting in that it imposes on member states an obligation to establish a methodology for calculating the energy performance of buildings and in setting energy performance standards for new and existing buildings.

Crucially the policy will give local planners the ability to insist that new housing developments should generate their own energy needs.

The laying down of a common methodology and targets may lead to overly prescriptive interpretation by Building Control inspectors but the government in its consultation on the possible future performance standards for Part L promises: ‘For new build the aim is to express the reasonable standard of provision for the whole building using the SAP energy and/or carbon methods leaving designers to follow their own inclinations as how best to achieve it, while keeping within constraints of poorest acceptable U-values.’

The government is also pushing ahead with its planning policy to encourage a proportion of a building’s energy demand to be generated from on site renewable sources. The UK government published Planning Policy Statement 22 in August 2004 to update planning guidance in order to make it easier for developers to win approval for alternative energy projects. Crucially the policy will give local planners the ability to insist that new housing developments should generate their own energy needs.

This permits local planning authorities to include requirements in their local development plans that a certain percentage of the energy used in new residential, commercial or industrial developments comes from on-site renewable energy developments. The means suggested are utilising small-scale energy schemes such as solar panels, biomass heating, small-scale wind turbines, photovoltaic cells and combined heat and power schemes.

Although the Policy Statement adds the caveats that local authorities should only insist on such schemes where they are viable and do not place undue burden on the developer, there is a clear opportunity for developers to argue that schemes they propose, which include low or no carbon emissions through on-site renewable energy generation, should have priority over standard developments.

More technical and potentially prescriptive Building Regulations and planning obligations will mean increased building costs. Future regulations are expected to cover the size and shape of buildings and more compact buildings with improved energy efficiency will be encouraged. Planning applications which include proposals to minimise carbon emissions will also become more routine, particularly where local authorities have adopted the proposals from Policy Statement 22 as part of their development plans. The net result; developments which are more costly to build but which should be cheaper to run.

Alan Fieldsend is a senior solicitor with Clarks. E-mail: afieldsend@clarkslegal.com or visit www.clarkslegal.com