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The Merton Rule required new commercial buildings over 1000 square metres to generate at least 10% of their energy needs from on-site renewable energy equipment .
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The threat to local standards of energy efficiency posed by the Future Homes Standard

The issue of whether local authorities should be able to prescribe higher standards of building within their areas has long been one of controversy in some circles. The Town and Country Planning Acts are intended to create regulatory control of building and ensure that designs and standards of new buildings in an area are safe, adequate and fitting for their context. The burden of operating this regulatory regime falls to the local council.

However, modern policy in local government, so far as building design and standards are concerned, goes far beyond whether a building has proper foundations or a safe structure. As time has gone on, climate change has become more and more important, with almost 300 local authorities now declaring climate emergencies within their area. These declarations recognise the importance of the warning in the IPCC’s report of October 2018 that urgent action needs to be taken to avoid runaway global warming.

As part of the work of composing action plans to meet targets of net zero carbon communities by 2030, the spotlight has focussed clearly on both the standards of energy efficiency in buildings and whether they rely on renewable energy rather than fossil fuels. It has, of course, become clear that to retrofit either a commercial or residential property is costly, inconvenient and less effective than it is to build the properties to the right standards at the start.

Therefore one gigantic elephant in the room shimmers into view: we are still – to this day – constructing buildings that do not comply with the standards laid down by the prevailing law in the Climate Change Act 2008 (as amended). Just so the gravity of this statement is not lost, this actually means that buildings just being completed will need expensive retrofit works within the next ten years. Any sensible person would find this incredulous, outrageous in environmental terms, but essentially foolhardy economically too. So why are we doing this?

I will not attempt to answer that question here but focus on an equally important point: what can be done about it?

Local authority roles

Even before local authorities declared climate emergencies for their areas, most had climate change strategies developed to both reduce greenhouse gas emissions and to mitigate their effect. These strategies have led to the undertaking of much good work across the country.

But the planning regime has always been a little aloof to this work, largely because it is a regulatory regime set down by statute and is fiercely guarded by the planning professionals who operate it within local government.

Notwithstanding this, the links between climate change and planning started to become clearer in the last 20 years and action started to be taken. The starting point could be identified as the Merton Rule, which was first established by Merton London Borough Council in 2003 and was subsequently adopted by scores of other local authorities. It required new commercial buildings over 1000 square metres to generate at least 10% of their energy needs from on-site renewable energy equipment and to achieve energy efficiency standards higher than Building Regulations.

The rule was subsequently extended to domestic dwellings and spread to many other authorities across the country. Suddenly, climate policy and planning policy were coming into alignment in a realistic and positive way.

After that, the success of the basic rule was such that it was decided by national Government to enshrine it in legislation. The Planning and Energy Act 2008 came to the statute book and conferred on each local planning authority the legal power to set and enforce local standards.

However, political views at a national level subsequently changed, largely due to lobbying by the building industry that objected to onerous requirements that they did not agree with. A difficult period of uncertainty ensued from around 2014, illustrated perfectly by Eric Pickles, when Secretary of State for Communities and Local Government, announcing that it was the Government’s intention to abolish these powers in a drive to cut bureaucracy.

The current legal position

Many local authorities simply assumed that this pledge had been actioned and, thinking that the powers had gone, stopped seeking better standards of energy efficiency and on site renewables. This was deeply unfortunate for two reasons: firstly, because any action to discontinue the requirement for higher local standards against a belief that a local authority had to was erroneous in legal terms; but also because building standards desperately needed to improve in any event to meet the Climate Change Act 2008.

It is not necessary to give full details here but the legal position – to this day – remains the same. The Merton rule was not abolished, and this means that local authorities can still require a percentage of energy used on site to be from renewable sources and with greater energy efficiency. The latter was the more complicated point as the Government announced planned changes via the Deregulation Act 2015 to the effect that energy efficiency standards above Building Regulations for domestic dwellings could not be imposed at local level. But the legislation that contains the rule (the Planning and Energy Act 2008 mentioned above) has not yet been amended to introduce these new constraints on energy efficiency. Successive Governments have failed to implement the provisions of the Deregulation Act. This means that the full Merton Rule powers are still available as they always were, for commercial and domestic buildings, covering energy efficiency and on site renewables.

A new threat

The Future Homes Standard was the subject of a consultation exercise by the Government late last year. The Consultation Paper The Future Homes Standard was published in October 2019 by the Ministry of Housing, Communities and Local Government.

In many ways, the consultation was to be welcomed, suggesting higher standards were now required to meet the Climate Change Act targets. At last environmental policy seemed to be properly aligning with planning policy. However, a closer look revealed that the proposals were nowhere near strong enough.

In a report commissioned by the West of England Authorities evidence was presented to illustrate that some options would offer worse fabric standards than currently existed under the Building Regulations 2013 and that the Future Homes Standard trajectory was not as good as local authority zero carbon policies already in place in that area.

That is the key point: local policies. This is because the Consultation went on to suggest that certainty and consistency in setting energy efficiency standards is more important than allowing local government local freedom to set (and evidence) their own targets. In paragraphs 2.23 – 2.28 it says that “the Government is therefore exploring … whether to commence the amendment to the Planning and Energy Act 2008, which would restrict local planning authorities from setting higher energy efficiency standards for new homes.”

So the Government has not given up on its plan to try and rip away the local authority’s ability to set and justify higher standards of energy efficiency - in new housing at least. This is a very poor time to raise this issue. Recent surveys have shown that the public is concerned across the country that climate change needs urgent action. In a recent APSE Energy survey a large majority believed that this action should be taken at a local level. Councils that have declared climate emergencies and set challenging targets to reach a position of net zero carbon, need the tools to do that.

However, those are non-planning issues. The most compelling planning issue is this. No one is suggesting that local planning authorities can simply set high and challenging standards without reason or without being held to account. Such policies need an evidence base, which is painstakingly constructed over a number of years. Following the determination of draft Local Plans there is an examination in public by a Planning Inspector appointed by the Government. He or she needs to be convinced that the policies are necessary in order to approve the Local Plan. This is how the West of England authorities have set and confirmed much higher standards for their areas than the out of date Building Regulations enforce.

So it is nonsense to suggest that powers to adopt local standards are not appropriate or not required to meet the demands of the Climate Change Act 2008.

Conclusions

Climate change needs a strong response at local level. Local authorities are rising to that challenge and garnering public support for such local action. Now that the ‘top down’ provisions contained in the old Zero Carbon Homes and Buildings policy have gone, it is up to local government to achieve these same aims from a ‘bottom up’, localist approach.

There is no excuse for poor building in this day and age and it is imperative that lower carbon, better performing buildings are created right now. This will only happen if local authorities are left the freedom to do what is right for their areas. If not, it is not just local authorities that will be picking up the pieces in various ways for many years to come.

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Contributer

Stephen Cirell

Stephen Cirell is an independent consultant specialising in local authority renewable energy projects. He is author of ‘A Guide to Solar PV Projects in Local Government’.

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