Covenants and building regulations: a twin track approach to improving the energy performance of Dutch buildings

Covenants and building regulations: a twin track approach to improving the energy performance of Dutch buildings

Lorraine Murphy

3.1 Introduction

The Netherlands traditionally enjoyed the term ‘front-runner’ in terms of environmental policy with early documents such as the 1989 National Environmental Policy Plan recognized as one of the ‘first and most comprehensive policy programmes towards sustainable development’ (Liefferink, 1998: 86). Alongside this, the Dutch government received frequent praise for promoting sustainable building (Beatley, 2000; Bossink, 2002), for being an early adopter of performance-based regulation and for including a range of stakeholders in policy design and implementation. Creativity and innovation in design and construction have attracted international recognition (Ouroussoff, 2007; Gauzin-Müller and Favet, 2002), as have results of tackling priority areas, such as construction waste (Rovers, 2008). Despite this status and the position of sustainable building on the political agenda for two decades, a common assertion is that it has yet to become mainstream practice (Priemus, 2005; Moss et al., 2005; Van Bueren, 2009). Nearly a decade of debate surrounding how sustainability can be measured means that the environmental chapter of the National Building Decree1 remains empty. Attracting even more attention is that energy efficiency, the enduring theme of the sustainable building debate, has yet to fully infiltrate the building sector in general and the existing building stock in particular.

Many energy efficiency policies lie outside the statute books, respecting a common Dutch approach to deliberation and self-regulation. A prime example is voluntary agreements, or covenants, as they are known in the Netherlands. Covenants are soft law instruments that can offer strategic support to regulation and form a testing ground for future regulation. As the outcomes of deliberative processes, between government and third parties, covenants embody the characteristic consensus approach to Dutch policy making. Alongside covenants are hard law instruments such as energy standards, which have been enshrined in building regulations in some form or other since the 1960s. With national and international commitments to reduce CO2 emissions, improve energy efficiency and increase renewable energy, attention is placed on overcoming the long-standing barriers to improving energy performance in the building sector. Whether the Dutch government will concede in favour of stricter, formal regulation or continue to invest in the market and civil society to develop innovative approaches through long-term voluntary processes remains to be seen.

In this chapter the understanding of green, or sustainable building as it is termed in the Netherlands, is presented. The national policy contexts for both sustainable building and the energy aspect of sustainable building are described. The merits and results of building regulations and covenants, two dominant policy instruments directing energy efficiency in buildings in the Netherlands, will be discussed. Opinion of what two decades of sustainable building has brought to the Netherlands is reviewed before conclusions are drawn.

3.2 Sustainable buildings in the Netherlands

3.2.1 Green buildings as sustainable buildings

Green building in the Netherlands is typically conceived of as sustainable building. However, the environmental dimension, and to a lesser extent health aspects, dominate the discussion. Sustainable building is commonly described in terms of minimizing environmental effects of construction, use, renovation and demolition with the positive benefits for health and cost efficiency emphasized (VROM, 2009). Accordingly, the prevailing themes are sustainability of materials, indoor air quality and energy performance. A common target of sustainable building in Dutch policy and academic circles is that the environmental impact of construction be reduced by a factor of 10 to 20 (Rovers, 2008; Van Kasteren et al., 2002). More recently, national and European/international commitments in terms of climate change, energy efficiency and renewable energy have attached exclusive targets to the energy aspect of sustainable building.

3.2.2 A context for sustainable building

The National Environmental Policy Plan (NEPP) of 1989 is frequently credited with launching sustainable building firmly onto the political agenda (Priemus, 2005; Liefferink and Van der Zouwen, 2003; Melchert, 2007). The NEPP is subject to parliamentary approval and sets the legislative framework for Dutch environmental policy. The 1989 version called for full integration of environmental considerations into policy areas (Liefferink and Van der Zouwen, 2003), identified the building sector as an environmental sector (Boonstra and Knapen, 2000) and was one of the first official documents internationally to give serious consideration to climate change (Pettenger, 2007). Documents produced in its wake demonstrated a more consolidated understanding of the environmental impact of the building sector with, for example, the emergence of Life Cycle Analysis (LCA) of materials (Boonstra and Knapen, 2000).

Guidance at national level was offered in the 1990s in the form of National Packages for Sustainable Building. The packages acted as a voluntary checklist for actors in the construction industry. While the packages were widely endorsed by municipalities they also received criticism for the degree to which they truly represented sustainability principles (Van Bueren, 2009). The packages received government support for approximately ten years until a change of government in 2000 led to a shift in policy focus to energy performance and stimulation of demand for sustainable building (ibid). At the time that support was withdrawn, over fifty sustainability rating tools, from both government and private parties, existed on the market (Van den Brand, 2006). The raft of tools drawing on different data, determining sustainability on the basis of different criteria and delivering different outcomes acted as a further miasma to an already complex sustainable building agenda.

In an effort to coordinate the range of sustainability tools, a current project between the government and market parties aims to harmonize a number of tools based on LCA. The outcome of this process will, it is envisaged, be an environmental performance standard for buildings that will be incorporated into the Building Decree during its next proposed revision in 2011. Such a move would finally furnish the environmental chapter of the Building Decree with some content.

The 1989 NEPP and supplementary documents not only established the content and scope of policy in terms of sustainable building but also the style (Liefferink and Van der Zouwen, 2003). Coinciding with a governance shift across many western societies the NEPP reflected a growing scepticism towards direct regulation and prescriptive technical solutions (Bressers and de Bruijn, 2005). An approach designed to encourage strategic relationships with stakeholders and self-regulation was increasingly viewed as more effective than a distant and authoritarian policy style (ibid). An expression of this governance shift is the covenant process, a defining characteristic of how the Dutch government interacts and shares responsibility with stakeholders in the development and implementation of environmental objectives. Traditional regulatory approaches remain intact, however, with building regulations at the helm in establishing minimum standards.

Alongside building regulations and covenants the Dutch government uses a range of carrots, sticks and sermons to stimulate change (Bemelmans-Videc, et al., 1998). Economic instruments play a role as carrots overcoming market failures when it comes to the promotion of sustainable products, while subsidies and green mortgages serve to increase the financial attractiveness of sustainable building. Sticks in the form of a ban on construction waste going to landfill have brought sustainability principles to different parts of a building’s life cycle. Demonstration projects have acted as sermons to dispel critical voices by showing that sustainable buildings do not necessarily diverge from conventional Dutch building design, need not entail excessive costs and can stimulate consumer demand. Information tools stemming from NGOs, government and energy suppliers have increased in sophistication with a range of interactive web-based tools available. Tailored energy advice for homeowners form more personalized information campaigns. More recently, instruments have adopted an international flavour with the Dutch Green Building Council launching BREEAM NL for new buildings in 2009 (DGBC, 2009).

While instruments developed over the last number of decades reflect the spectrum of sustainability issues, the energy aspect has invariably dominated. Energy remains the only sustainability aspect regulated in the Building Decree. As currently formulated it is the theoretical energy use in the user phase of a building that receives regulatory attention. As a result energy embodied in construction products or prevalent at different stages of a buildings life cycle remains untouched by building regulations. Neither is energy positioned within the wider sustainability context representing a missed opportunity in achieving concomitant gains for aspects such as water efficiency.

3.2.3 A context for energy efficiency in buildings

Since the energy crisis in 1973, energy has outperformed other sustainability issues in terms of information campaigns, economic incentives and regulations. The context for energy efficiency has altered over the years with the current government framing action in terms of energy security, climate change and economic competitiveness (VROM, 2007). These three issues are tackled in one process known as the energy transition. As with sustainable building over a decade earlier the energy transition received its national political debut through the NEPP. In 2001, in the fourth NEPP, it was argued that intensifying policy instruments for environmental problems like climate change would be inadequate; instead, “solving the major environmental problems requires system innovation; long drawn-out transformation process comprising technological, economic, social-cultural and institutional changes” (VROM, 2001: 30).

In 2007 the Dutch cabinet launched the ‘Clean and Efficient’ (Schoon en Zuinig) work programme to strengthen the energy transition. National targets encompassing, and at times going beyond, EU climate and energy package targets and Kyoto targets were proposed, such as:

•  a reduction of greenhouse gas emissions by 30 percent (baseline year 1990)

•  a reduction of energy consumption by 2 percent per year by improving energy efficiency

•  an increase in the share of renewable energy in Dutch energy consumption to 20 percent, with all three targets to be achieved by 2020 (VROM, 2007: 3)

With responsibility for approximately 37 percent of total energy use in the Netherlands (cited in Itard et al., 2009: 3) it is not surprising that the building sector has become a focus for realizing these ambitious targets. The energy-saving potential associated with buildings is demonstrated in the Dutch response to the European Energy Services Directive (ESD).2 The ESD stipulates that member states achieve a 9 percent improvement in energy efficiency by 2016. The building sector features as the largest contributing sector to the Dutch ESD target (Ministry for Economic Affairs, 2007). The central role afforded to this sector is not unique to the Dutch perspective. The EU recognizes the building sector as the largest energy user with responsibility for the majority of CO2 emissions. Legislation such as the Energy Performance of Buildings Directive (EPBD)3 is used to lever costeffective savings which are viewed to hold the potential of reducing final energy use in the EU by 11 percent (EC, 2008: 2).

Box 3.1 details measures used to stimulate energy efficiency in the Dutch building sector. For new buildings, regulatory attention focuses on tighting current performance standards as established by building regulations. Existing buildings have limited exposure to performance standards and the Energy Performance Certificate (known as the Energy Label in the Netherlands) as required under the EPBD is instead the main regulatory focus. Three national ‘energy performance’ covenants play a role, assigning specific targets to existing buildings, the social housing sector and new buildings.

Box 3.1 Policy Tools Supporting Energy Performance in Buildings in the Netherlands

Existing buildings

•  Energy Label: designates an energy rating (A–G) for buildings. Investigations into the legal implications of requiring all buildings on the market to rate C or higher is planned.

•  Building Decree: sets thermal envelope requirements for buildings undergoing extension/renovation. Standards for new build are required for complete renewal.

•  Covenant ‘More with Less’: aims to overcome the barriers to improving energy performance in existing houses. Targets include improving the performance of 500,000 houses by 2011 and 300,000 per year until 2020.

•  Covenant ‘Energy Saving in the Corporation Sector’: aims to stimulate energy saving in the social rental sector (35 per cent of dwellings in the Netherlands).

•  Social Rent Rating System: is due to include energy as a factor dictating rental charges for social housing. Energy as a quality aspect will be inferred from the Energy Label.

New buildings

•  Energy Performance Co-efficient (EPC): will be revised with aims of achieving:

•  –energy neutrality in residential buildings by 2020

•  –50 per cent improvement in energy efficiency of utility buildings by 2017

•  –Government buildings achieve energy neutrality by 2012

•  Covenant ‘Spring Agreement-Energy Saving in New Build’: aims to achieve energy neutral buildings by 2020. Objectives include the development of a revised energy performance methodology to achieve this target.

Crosscutting policy tools

•  Subsidies: promote advice and innovative technologies. Schemes from national and local governments, banks and energy suppliers operate often over short time periods.

•  Information tools: provide information on subsidies, policy support and compliance checks for legislation. Milieu Centraal, COEN, HIER and branch organisations are the main active organisations.

•  Energy Performance of Buildings Directive: mandates the Energy Label, stipulates minimum standards for new buildings and existing buildings under renovation and requires inspections on installations such as boilers and air conditioning units.

•  European Eco-design Directive: regulates efficiency improvements in energy using products and acts as a key component of the legislation package for buildings.

Adapted from Ministry of Economic Affairs, 2007; VROM, 2007.

While building regulations and covenants represent enduring features of the policy landscape, a range of additional tools act as further bait for energy performance gains. It is proposed that the national Social Rent Rating System will include energy as a factor determining rental charges. This is an attempt to overcome the barrier of ‘split incentive’, meaning that social housing landlords could theoretically recoup the costs of investing in energy efficiency through demanding higher rents. Information and economic tools Improving the energy performance of Dutch buildings are introduced at different stages of energy efficiency campaigns to increase awareness and reduce market inequalities in terms of sustainable energy products and services. In addition, implementation of the European Eco-Design Directive4 focuses on the energy used in buildings in terms of product use, complementing the EPBD’s focus on the building envelope.

Nonetheless, two tools varying significantly in content, scope, actor involvement and legal basis typify the energy aspect of sustainable building in the Netherlands: one hierarchical and traditional based on public law expressed chiefly through energy standards in building regulations, and the other based on private law and voluntarism between government and market parties through covenants (Glasbergen, 1999; Van der Waals and Glasbergen, 2002). Often building regulations and covenants are explicitly linked (Glasbergen, 1999; Zito et al., 2003) as covenants bolster regulations identifying avenues for more innovative approaches. How building regulations and covenants are organized and enforced and results of implementation are described in the following sections.

3.3 The Building Decree and energy performance regulations

3.3.1 Evolution and organization of the Building Decree

The backbone of energy efficiency legislation in the Netherlands is the National Building Decree and associated energy performance regulations. The decree was developed from national standards first introduced in 1965 by the Association of Dutch Municipalities (Van der Heijden et al., 2007). The result was the Model Building Bye-Law,5 which was not mandatory but was widely adopted. In terms of energy, the model initially prescribed thermal insulation standards but over the years its influence extended to prescribing requirements for components such as double-glazing (Van Cruchten et al., 2008).

A desire for a centralized, uniform and performance-based suite of regulations resulted in the introduction of the National Building Decree in 1992 (Visscher and Meijer, 2008; Ang et al., 2005) with a current version dating from 2003. The legal basis for the decree is the Housing Act.6 Technical detail is contained in the associated regulations while standards developed by the Dutch Standardisation Institute can verify that established values are attained (Visscher and Meijer, 2006).

The Building Decree consists of five chapters covering health, safety, usability, energy use and environment. The content and scope of the environment chapter is yet to be developed, however. Proposals to revise the decree in 2011 and a current project focused on harmonizing a number of LCA tools should witness the inclusion of performance criteria for materials in the environment chapter.

Energy aspects are dominated by the Energy Performance Norm (EPN), which represents an integrated method for calculating energy use in a building. The result of the EPN is the Energy Performance Co-efficient (EPC) defined as ‘the characteristic energy use of a building divided by the standardized energy use’ (cited in Beerepoot, 2002). Characteristic energy use is understood to be space heating, hot water heating, lighting and energy use by fans, cooling and humidification installations (ibid). As well as the performance requirement for the whole building, the decree contains several basic requirements including access to daylight and minimum standards for insulation, air permeability and ventilation (Rovers, 2008).

A key criterion in the design of the performance-based regulations was that design freedom and innovation would not be constrained, therefore technical solutions are avoided (Visscher and Meijer, 2008; Ang et al., 2005). This allows freedom in deciding how elements can be combined to reach the EPC value. There are no qualification or training requirements for calculating the EPC and it is not linked to an accreditation process. Calculations demonstrating that the EPC has been achieved are submitted to municipality building control departments as part of the building permit process.

The EPC is the stalwart component of the Building Decree. It has been incrementally tightened over the years in a quest to continually improve overall energy efficiency and to stimulate innovation. In 1995 the EPC for a dwelling was 1.4, which at the time represented an improvement of about 10 percent in energy use (Rovers, 2008: 24). Currently, the EPC is 0.8 with proposals to reduce this to 0.6 in 2011 and to 0.4 in 2015 with the aim of reducing fossil fuel use by 50 percent (VROM, 2007: 24).

3.3.2 Compliance and enforcement

While the formulation of building regulations is centralized, compliance and enforcement arrangements remain with municipalities. An amendment to the Housing Act in 1992 permits the transfer of regulatory supervision to regional authorities or the private sector (Van der Heijden et al., 2007) although municipalities largely maintain their traditional duties (Van der Heijden, 2009). Compliance and enforcement is organized around the planning and construction phases of a building project with no provision for post construction monitoring and verification (Visscher and Meijer, 2008). This exposes particular problems for energy performance as it is strongly dictated by building practice (Joosen, 2007).

It is claimed that the compliance rate with building regulations is approximately 70 percent in the Netherlands, a figure that is in line with the average in other IEA countries (IEA, 2009: 41). Nonetheless, other sources indicate that the actual rate is somewhat lower (see Van der Heijden, 2009). Furthermore, research focusing on compliance with the energy aspects of building regulations presents a starker picture. A study commissioned by the Ministry of Environment found that in 154 new house developments 25 percent contained incorrect EPC calculations while the EPC upon final construction was incorrect in over half the cases (Kuindersma and Ruiter, 2007).

Lack of compliance and enforcement of building regulations in general and energy standards in particular is explained by a range of factors including: