The quest for sustainable buildings: getting it right at the planning stage
Climate change and security of energy supply are key drivers of policy and legislation in current times. At the same time, the UK government is also focusing upon those households subject to ‘fuel poverty’.1 There is an impressive number of initiatives in place to secure reduction in greenhouse gas emissions and to promote energy efficiency. These measures range from legally binding international agreements to local voluntary community schemes. The complexity of the policy and legal frameworks is accentuated by the fact that there are multiple goals to achieve and this results in some incidences of paradox. Take micro generation, for example. Certainly domestic schemes will result in reduced carbon dioxide emissions and should provide a reliable source of energy for the future. As evidenced by the Climate Change and Sustainable Energy Act 2006, the UK government also sees micro generation as one of the hopes for reducing fuel poverty. Micro generation does, however, tend to be expensive (certainly in comparison with current energy prices) and if it is to be successful in the alleviation of ‘fuel poverty’ then substantial financial support will be needed. Ultimately, whether the economics of micro generation make sense will depend upon whether the era of cheap centralized energy is really at an end (Dow, 2007). The array of measures in place to improve energy performance and thus reduce carbon emissions will also serve to ease the burden of energy expenses on poor households. However, their role in addressing the goal of reducing carbon emissions is based on the premise that a large proportion of energy provision is from fossil fuel sources. A switch to a mix of nuclear and renewable sources (although this may raise other entirely different issues in relation to the environment and sustainability) would arguably be far more efficient in reducing carbon emissions from buildings.
This chapter focuses upon the legal provisions in place to reduce carbon emissions from buildings in the UK. In particular, it reviews the role and the potential of the UK planning regime to this end. The first section sets the context in terms of global and regional commitments to counter climate change. Some of the legislative provisions in the UK are then explored. This includes overarching measures such as the Climate Change Act, 2008 as well as specific legislation that targets the energy performance of buildings. This second section of the chapter also gives some brief attention to the nonlegally binding ‘Code for Sustainable Buildings’ as this is integral to the way in which planning law can operate to improve standards. The third and final part of the chapter considers the role of the UK planning regime, including the development and future of the ‘Merton Rule’, incentives for micro generation through the ‘Permitted Development Order’ route and the use of model planning conditions. In order to illustrate how the use of planning conditions can succeed (or not), two case studies are considered. In one of the case studies, a planning condition was upheld whereas the relevant condition in the other case study was subject to a successful appeal. Some tentative conclusions are then drawn as to the future direction of law and policy in the UK relating to emissions from buildings in the context of the coalition government’s ‘localism’ agenda.
4.2 The international and regional context
4.2.1 The international regime
The international climate change regime comprises the United Nations Framework Convention on Climate Change2 and its Kyoto Protocol.3 Both of these instruments are in force and are legally binding. The Kyoto Protocol commits many of the industrial nations to a reduction in the annual average of greenhouse gas emissions. In the ‘first commitment period’ from 2008 to 2012 the reduction is to an average level of 95 per cent of 1990 emissions. Fundamental problems have been identified with the Kyoto Protocol. Not least of these is the fact that the United States (US), responsible for 20 per cent of the overall output of greenhouse gases, is not a party (UNDP Human Development Report, 2007/2008). It has also been suggested that the commitments made so far are inadequate and have not been successfully implemented (Barker et al., 2007, den Elzen, 2008). With the first commitment period drawing to a close in 2012, it was hoped that, following the Bali Action Plan, adopted by the international community in December, 2007, an ‘agreed outcome’ on long-term cooperative action on climate change would be reached in Copenhagen in December 2009. Despite much debate as to the possible legal form of the ‘agreed outcome’ (Rajamani, 2009) and high hopes of a legally binding agreement (Thomas and Woodward, 2010) there was no such agreement. The result of the Copenhagen Conference is an accord, led by the US, between China, India, Brazil, South Africa and the US to tackle global warming and deliver aid to developing nations. Despite criticisms of the Kyoto Protocol and the failure to reach any kind of multilateral agreement at Copenhagen, there is no doubt that the Kyoto goals have been a powerful driver for governments. The Copenhagen accord does provide for nations to commit to implement emissions targets for 2020 and a number of world leaders have signified their intention to introduce further more stringent, legally binding targets (Thomas and Woodward, 2010).
4.2.2 Law and policy of the European Union
The European Union (EU) has the quota of a reduction to 92 per cent of 1990 levels by 2012 under the Kyoto agreement. However, the EU is committed to even more stringent targets than those provided for under the international regime. The EU objective is to reduce overall greenhouse gas emissions by at least 20 per cent below 1990 levels by 2020 and by 30 per cent in the event of an international agreement being reached. The Union has also set a binding target for energy from renewable sources of 20 per cent of total EU energy consumption by 2020. A range of measures exist to achieve these goals, including a directive on energy end-use efficiency and energy services,4 with an overall objective of saving 9 per cent of energy by 2012 and a directive on the promotion of the use of energy from renewable sources5 that provides for the improvement of energy efficiency in the context of the binding target for energy from renewable sources. The key legislative instrument applying to the control of emissions from buildings is the directive on the energy performance of buildings (2002/91).6
Under directive 2002/91, member states are required to establish a methodology for determining the energy performance of buildings and set minimum energy performance standards. New buildings above 1000 square metres are to meet these standards as are buildings above this limit that undergo major renovation. On construction, sale or rent, an energy performance certificate for the building must be made available and this is to be no more than ten years old. Public buildings exceeding the 1000 square metres limit are required to display their certificates. The directive also provides for inspection regimes for boilers and air conditioning systems and for inspections to be carried out by independent experts (Hookins and Stonehill, 2006).
Over recent years there have been calls from the European Council and the European Parliament7 for the Commission’s priorities, established in its Action Plan for Energy Efficiency: Realising the Potential published in 2006,8 to be comprehensively and swiftly implemented. The action plan identified the significant potential for cost-effective energy savings in the buildings sector and, as part of the package of measures to achieve the priorities of the action plan, a new directive on the energy performance of buildings was published in May 2010. When in force (2012), the directive will expand upon the provisions of the 2002 directive significantly (Mittenthal, 2009).
Under Article 4 of the new directive, member states will have to set minimum energy performance requirements for buildings or building units ‘with a view to achieving cost-optimal levels’. This requirement will also apply to ‘building elements that form part of the building envelope and that have a significant impact on the energy performance of the building envelope when they are replaced or retrofitted’. The requirement to meet minimum energy performance requirements will apply to all new and existing buildings, regardless of size.9 Member states will also be required to set energy performance for technical building systems installed in existing buildings.10 The directive includes a new binding requirement upon member states to ensure that by 2020 all new buildings are nearly zero-energy.11 The display requirements for public buildings are extended to include those ‘frequently visited by the public’ and the threshold size is lowered to 500 square metres (to be reduced further to 250 square metres in 2015).12 In addition, inspection requirements are extended to apply to all elements of heating systems (not just boilers).13
4.3 UK legislative provisions
4.3.1 The Climate Change Act 2008
The UK is also committed to more ambitious targets than those set in the Kyoto Protocol. In fact, it is the first nation worldwide to adopt a legally binding long-term framework to cut carbon emissions. The controversial Climate Change Act, 2008 imposes a statutory duty upon the Secretary of State of 2050 ‘to ensure that the net UK carbon account for the year 2050 is at least 80 per cent lower than the 1990 baseline’.14 The imposition of statutory duties on government is a novel approach in UK law (Stallworthy, 2010) and some might doubt the meaningfulness, in particular, of imposing a legal duty on an individual whose identity is, as yet, unknown. It is also difficult to see how legally binding this target can be, when it is unlikely to be legally enforceable (Townsend, 2009; Stallworthy, 2010). However, proponents of the Act (Grekos, 2009; Townsend, 2009) recognize its possibilities in terms of improving carbon management, moving the UK towards a low carbon economy and providing strong leadership and commitment to shouldering an equitable burden in reducing global emissions. It may also provide some certainty and encouragement for industry and business.
The Act requires that a series of five-yearly carbon budgets are set by order of the Secretary of State. The first three budgets (2008–22) have already been set by the Carbon Budgets Order15 with a view to meeting the 2050 target. Thus 2018–2022 is 34 per cent lower than the 1990 baseline. There is a more ambitious figure of 42 per cent by 2020, which will only be adopted if a global agreement is reached. The crediting of carbon units is going to be crucial if these objectives are to be met. This is clearly illustrated by the scale of net reduction from 2007 to 2008, which was a mere 2 per cent (DECC, 2010). The Carbon Accounting Regulations, which define carbon units and set out how carbon can be credited to the account, came into force on 31 May 2009.16 Greenhouse gas allowances (under trading schemes) can also act as credits, but only credits under the EU emissions trading scheme can be credited to the UK carbon account.
The Secretary of State is subject to a duty ‘to ensure that the net UK carbon account for a budgetary period does not exceed the carbon budget’.17 Some indication as to how this will be achieved is provided in measures recommended by the Climate Change Committee set up under the Act to advise the Secretary of State.18 The key short-term recommendations of the Committee are:
• Energy efficiency improvements in building and industry
• Fuel efficiency improvement in road vehicles
• A significant shift towards renewable and nuclear power generation and renewable heat
In order to achieve the extremely ambitious targets provided for in the 2008 Act, a range of policy and legislative initiatives have been put in place. The two primary mechanisms for the delivery of energy efficiency improvements in buildings are building regulations and the planning regime and these are considered below.
4.3.2 Powers under the Building Act 1984
The Building Act 1984 places certain aspects of building under statutory control and empowers the Secretary of State to make regulations that provide details of exactly how that control is exercised.19 The scope of the Building Act in terms of regulating the conservation of fuel and power was significantly widened by two recent pieces of legislation: The Sustainable and Secure Buildings Act 2004 and the Climate Change and Sustainable Energy Act 2006. The Sustainable and Secure Buildings Act 2004 enables the making of regulations for ‘furthering the conservation of fuel and power’20 and extends the range of matters in respect of which regulations can be made.21 Significantly it allows for the regulation of existing buildings in matters relating to energy conservation and carbon emissions.22 It also inserts a new Section 2A into the Building Act 1984, which allows for regulations to be made that impose ‘continuing requirements’ on building owners and occupiers regardless of when the building was erected or whether other building works are ongoing. These powers are potentially far-reaching and would permit, for example, the making of regulations requiring all lofts to be insulated (McAdam, 2007). The Climate Change and Sustainable Energy Act 2006 further extended the powers under the Building Act 1984 by enabling regulations to be made under the Act relating to the installation of micro generation technologies in buildings.23 The Act also extends the time limit for prosecution of those in breach of regulations specifically relating to the conservation of fuel and power.24
The Building Act 1984 allows for guidance documents to be approved and compliance with approved guidance creates a presumption that the works in question comply with the requirements of the Act as provided for in The Building Regulations. Part L guidance documents deal with the conservation of fuel and power25 and these cover new dwellings, existing dwellings and new and existing buildings other than dwellings. Under The Building Regulations, target emission rates for buildings have to be set for new dwellings, and buildings over 1000 square metres must be brought up to Part L standard when renovated.26 For new dwellings the government has committed to a programme by which regulations will demand 25 per cent lower carbon emissions by 2010, 44 per cent lower by 2013 and by 2016 all new dwellings should be zero carbon.27 Thus, the Part L standard in building regulations will be incrementally raised over forthcoming years. New Part L guidance implementing the 25 per cent lower emissions requirement came into force in October 2010. For existing housing stock, it is arguable that the full potential of the Building Act and regulations made under it have not as yet been fully realized. The government has turned its attention to the problem of tackling emissions from existing housing and a House of Commons Report was published on the subject in 2008.28 The report sets out recommendations for improving energy efficiency in existing housing with a ‘shopping list’ of recommended measures for government (Grekos, 2008). These include measures to encourage the take-up of home micro generation, requirements for consequential energy efficiency improvements in planning consent on extension of homes, new requirements for Energy Performance Certificates and the production of a ‘Code for Existing Homes’ along the lines of the ‘Code for Sustainable Homes’ (see below).