Sustainability regulations throw up new pitfalls for developers

A new regulatory regime is being created to ensure that all new-build homes and commercial buildings meet the government’s target of being “zero carbon” by 2016 and 2019 respectively. The construction industry is facing a barrage of legislation (revised to include sustainability provisions); local and central government planning policy; and sustainability assessments, both compulsory and voluntary.

Developers failing to take note of the regime may be refused planning permission, suffer damage to their reputations or even face prosecution. What do they need to beware of?

Building Regulations 2000

The EU’s Energy Performance of Buildings Directive led to additional regulations in the BR 2000 (Part L, Schedule 1) which require that new buildings (and their fixed services, eg heating, lighting and water) meet minimum standards. An energy performance certificate (EPC) must be provided to building control and to the new building’s owner by the developer.

Failure to meet the minimum standards may result in prosecution by local authorities in the magistrates’ court and penalties of up to £5,000, plus £50 a day for continued default. In addition, failure to obtain an EPC can result in further penalties and will prevent the issue of a certificate of practical completion.

Planning system

The Planning Act 2004 introduced a duty on local planning authorities to exercise their planning powers “with the objective of contributing to the achievement of sustainable development”. Planning Policy Statement 1: Delivering Sustainable Development defined four aims of such development: social progress which recognises the needs of everyone; effective protection of the environment; prudent use of natural resources; and maintenance of high, stable levels of economic growth and employment.

It is becoming ever more difficult – and expensive – for developers to obtain planning permission

As councils adopt these policies, there is an increasing element of “front loading”, with more detail required at the outline permission stage. For example, to ensure a building will be sustainable it may well be necessary to consider the detail of its siting, particularly its orientation to the sun for passive solar heating, and its external appearance (photovoltaic cells, etc).

Add to this the need to comply with standards such as BREEAM and the Code for Sustainable Homes (see below) and the insistence of most planning authorities that new development should fund local infrastructure, and it can be seen that it is becoming ever more difficult (and expensive) for developers to obtain planning permission.

Completion assessments

The main methods for assessing new buildings are the Code for Sustainable Homes and BREEAM (for commercial). Both give a “rating” measuring the level of sustainability over and above the minimum requirements of the BR 2000.

A Code rating is now a statutory part of a home information pack, and the government is considering introducing a Code for Sustainable Non-Dwellings. Many public bodies and private companies are already using the Code/ BREEAM ratings to set standards for the development of their new stock.

Developers failing to consider sustainability in the design process, and to acquire a certain rating under the Code/ BREEAM, may therefore face breaching construction contracts and legal requirements, as well as trying to sell a property which is less marketable because of a lack of “green credentials” – not helpful in a falling market.