Inclusion of zero carbon "allowable solutions" in Infrastructure Bill is good news for developers, says expert

As part of its programme of legislation for the next parliamentary session, set out in the Queen's speech, the government said that it would set a minimum energy performance standard through the building regulations. However, developers would be able to "offset" a certain amount of carbon emissions through cost effective off-site carbon abatement measures, said supporting documents published by the government. In addition, "small sites, which are most commonly developed by small-scale house builders" would be exempt. The government said that it would consult on the meaning of "small site" shortly.

Energy and environmental law expert Linda Fletcher of Pinsent Masons, the law firm behind Out-Law.com, said that the government had previously committed itself to a 'zero carbon' target for new homes from 2016. However, delays in bringing forward legislation to secure the delivery of this target had given the industry "mixed messages", she said.

"Firstly, there were delays in tightening the energy efficiency requirements in Part L of the Building Regulations, which were due in October 2013 but did not come into play until this April," she said. "Even then, they were much less stringent than was expected, raising concern for the trajectory from now to 2016 and the capacity to deliver zero carbon new homes. Secondly, the long-awaited and eagerly anticipated consultation on what should constitute an 'allowable solution' was not published until August 2013."

"The government has been keen to standardise requirements for new developments to give developers more certainty at a time when they are trying to encourage new homes to be built and the consultation on allowable solutions clearly favours developers by giving them a greater say as to how to deliver carbon emission reductions off-site. The alternative would have been to allow the local planning authority to set the goal posts, leading to a variation in requirements and no clear set of national standards," she said.

The government intends for newly-built homes to be 'zero carbon' from 2016; while a similar standard is expected to apply to new non-residential buildings from 2019. House builders will be required to minimise 'regulated' emissions; which are the carbon emissions associated with energy arising from fixed heating and lighting, hot water and other fixed building services in new homes. These will be governed by Part L of the Building Regulations. The standard will not apply to carbon emissions from appliances or 'white goods'.

According to the announcement in the Queen's speech, the zero carbon home standard will be set at the equivalent of 'Level 5' of the Code for Sustainable Homes, which will now be abolished. However, the legislation would allow developers to build to 'Level 4' as long as they offset through allowable solutions to achieve Level 5. Allowable solutions could be used where it was not "technically feasible or cost effective" to mitigate all emissions onsite, for example through onsite energy efficiency measures or renewable energy such as solar panels, the government said.

"The government's response on 'allowable solutions' in the Queen's speech, which will now be enshrined in the Infrastructure Bill, will be welcomed by the industry, especially in terms of much-needed consistency in the design and delivery of energy efficient new homes," said Fletcher. "The exclusion of still-to-be-defined small housing developments is perhaps not a surprising step as it is harder to achieve the zero carbon target on smaller developments, particularly where there is no mixed use scheme."

"The government has had to grapple with a policy dilemma in coming to this conclusion, balancing the difficulties of achieving the zero carbon target against the need for more homes. However its decision to exclude small developments from the zero carbon requirements is a mixed message given its Climate Change Act targets and the long-term strategy and goals prescribed in the EU's Energy Efficiency Directive," she said.

Fletcher said that the government's commitment to bringing forward new legislation was an initial step towards implementing zero carbon standard for all new buildings, as further legislation would be required to deliver the 2019 target for all new commercial buildings.

"The main vehicle to be used will again be tightened building regulations, and we would expect a similar allowable solutions mechanism to be put in place where 'zero carbon' could not be delivered on site," she said.