Provision in Building Regulations for Off-Site Carbon Abatement Measures

INFRASTRUCTURE BILL

SUPPLEMENTARY MEMORANDUM FROM THE DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT FOR THE HOUSE OF LORDS DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Provision in building regulations for off-site carbon abatement measures

Background

1.Building regulations made under the Building Act 1984 currently provide that a building that is erected shall meet a target rate for maximum emissions of carbon dioxide. The Government is committed to introducing a zero carbon emissions standard for new dwellings in England from 2016. To achieve this may not however be cost-effective or feasible for all buildings, and therefore the Government has developed a policy of allowable solutions for compliance with the standard. Under this, a target rate for emissions will be set at the lowest level consistent with feasible and cost-effective compliance across the country, leaving a gap of residual emissions between that target rate and zero emissions. Developers will have a choice of allowable solutions to abate those residual emissions.

2.The allowable solutions will include measures taken in relation to the new building itself. There will be options however to offset residual emissions by reduction of emissions elsewhere, for example by measures taken in relation to existing buildings, or by investment in energy-efficient infrastructure projects. Such measures may be undertaken by the developer or by a third party for the developer. There will also be an option to pay at a capped rate into a fund into which invests in carbon-saving measures. Existing powers in the Building Act 1984 do not extend to providing for measures relating to buildings that are not in or on the building, or connected to it. The purpose of the clause is to allow for such measures for the purposes of abating carbon emissions, and establish the necessary ancillary provision for the functioning of those measures.

Summary

3.The Building Act 1984 establishes powers for the making of building regulations, principally in section 1 (power to make building regulations) and Schedule 1 (building regulations). Section 1(1) sets out purposes for which building regulations may be made, including “furthering the conservation of fuel and power” and “furthering the protection and enhancement of the environment”, with respect to “the matters mentioned in subsection (1A)”, which include“the design and construction of buildings” and “services, fittings and equipment provided in or in connection with buildings”. Section 1(3) provides that Schedule 1 “has effect with respect to the matters as to which building regulations may provide”. That Schedule contains numerous detailed provisions concerning both substance and procedure, including paragraph 4A which provides for certification of compliance with building regulations on matters of prescribed descriptions by prescribed persons. The main building regulations are the Building Regulations 2010, which define the work that is subject to building regulations, establish requirements to be met in respect of that work, establish various procedural requirements for compliance, and make provision for the inspection of building work. In Part 6 (energy efficiency requirements) of the Regulations, regulation 25 (minimum energy performance for new buildings) provides for a “minimum energy performance requirement for new buildings, in the form of target CO2 emission rates”.

4.The clause supplements the powers of the Secretary of State under the Building Act1984. It adds action in relation to emissions of carbon dioxide to the matters for which building regulations can be made; it provides that such action may be taken otherwise than in relation to the building that is being built, and it further describes the actions that may be taken. The clause also provides for a fund for carbon abatement activities into which payment can be made as an alternative to action by the developer.It provides for the administration of the fund by the Secretary of State, or by a person on behalf of the Secretary of State, and for a cap on payments that the fund may require. It provides as well for a register of certificates issued under paragraph 4A powersshowing compliance with the zero carbon standard by use of allowable solutionstobe established and run, by or by a person on behalf of, the Secretary of State.

Clause [inserted after clause 25]: Provision in building regulations for off site solutions carbon abatement measures

Power conferred on:The Secretary of State

Power exercisable by:Regulations made by statutory instrument

Parliamentary procedure: Negative Resolution

5.Subsections (1) and (3) of the clause introduce the amendments to the main provisions of the Building Act 1984 and to Schedule 1 to the Act respectively Subsection (2) adds action to be taken in respect of the carbon dioxide emissions attributable to a building to the matters that may be covered by building regulations.

6.Subsection (4) inserts a new paragraph 7A into Schedule 1 to the Building Act 1984. In that new paragraph, sub-paragraphs (1) and (2) provide that action taken in respect of carbon dioxide emissions from a building may include measures taken otherwise than in relation to the building itself.

7.Sub-paragraph (3) of new paragraph 7A provides that the action taken may include action to reduce emissions or to remove carbon dioxide from the atmosphere, or agreeing that another person will perform those actions, ormaking payment into a fund, administered by or on behalf of the Secretary of State, whose proceeds are used to pay for carbon abatement activities.

8.Sub-paragraph (4) establishes power to create and maintain a register of certificatesattesting actions within sub-paragraph (3) that are issued under paragraph 4A of the Building Act 1984 for the purposes of showing compliance with building regulations. It also provides that charges may be imposed in connection with registration and with disclosure from the register.

9.Sub-paragraph (5) provides that provision in building regulations to create and maintain a register must provide for it to be done by or on behalf of the Secretary of State.

10.Sub-paragraph (6) establishes powers to make provision for the creation and administration of a fund under sub-paragraph (3)(c) by or on behalf of the Secretary of State, and for the purposes for which fund proceedsmay be used.

11.Sub-paragraph (7) establishes powers to provide for calculating payments into a fund, and for establishing a maximum level for payments into a fund.

12.Sub-paragraph (8) of new paragraph 7A and subsection (5) of the clause makes provision necessary for off-site carbon abatement measures to include measures to reduce the carbon emissions of existing buildings.

13.The Building Act 1984 extends to England and Wales. The new powers to make regulations in the clause will be exercisable in relation to England only.

14.Provision in building regulations for allowable solutions for off-site carbon abatement will be made for new dwellings in England, to apply from 2016. The powers are available in respect of all buildings, and it is possible that similar provision may be made also for new non-domestic buildings, although there is no current policy to do so.

15.It is intended that any charges in connection with registration and disclosure from the register would be set on a cost recovery basis.

16.By virtue of section 14(3) of the Building Act 1984, the Secretary of State must, before making building regulations, consult the Building Regulations Advisory Committee for England, established under section 14(1), and such other bodies as appear to him to be representative of the interests concerned.

Justification of the delegation

17.Building regulations made under section 1 of the Building Act 1984, supplemented by section 2(2) of the European Communities Act 1972 in respect of matters also resulting from EU obligations, contain the whole of the legislative scheme for technical requirements and standards relating to buildings. It is consistent with this scheme therefore that provisions to implement the zero carbon standard for buildings should be set out in building regulations made using the powers in that section as supplemented as set out in this clause.

Justification of the level of Parliamentary scrutiny

18.By virtue of section 1(4) of the Building Act 1984, the power to make building regulations is exercisable by statutory instrument, subject to annulment by resolution of either House of Parliament. The powers in that section are supplemented by this clause to the extent that building regulations that are within the scope of the existing powers may be complied with in analternativeway in order to prevent the imposition of disproportionate burdens on developers of buildings. There is accordingly in the view of the department no reason to think that regulations made using the new power should be subject to any greater scrutiny than already applies to building regulations.

Amendment Text

After clause 25

Insert the following new Clause—

“Provision in building regulations for off-site carbon abatement measures

(1) The Building Act 1984 is amended as follows.

(2) In section 1(1A) (matters that may be covered by building regulations) after
paragraph (c) insert “;

(d) in relation to a building in England, the action to be taken as
a result of the building’s contribution to or effect on
emissions of carbon dioxide (whether or not from the
building itself).”

(3) Schedule 1 (building regulations) is amended as follows.

(4) After paragraph 7 insert—

“7A (1) This paragraph applies if building regulations impose a
requirement in relation to a building in England as respects its
contribution to or effect on emissions of carbon dioxide (whether
or not the requirement relates to emissions from the building
itself).

(2) Building regulations may make provision for a person to whom
the requirement applies to meet it (in whole or in part) by taking
action otherwise than in relation to the building.

(3) Such action may include—

(a) doing things which consist of, or cause or contribute,
directly or indirectly to—

(i) reductions in emissions of carbon dioxide, or

(ii) the removal of carbon dioxide from the
atmosphere;

(b) agreeing with another person that the person will do
things within paragraph (a);

(c) making a payment or payments to a fund—

(i) which is administered by, or by a person acting on
behalf of, the Secretary of State, and

(ii) the proceeds of which are used to pay (directly or
indirectly) for activities within paragraph (a).

(4) Provision made under paragraph 4A for the use of certificates as
evidence of compliance with building regulations by virtue of
action within sub-paragraph (3) may include provision—

(a) for the creation and maintenance of a register for keeping
track of the use of certificates for that purpose;

(b) about the administration of the register;

(c) for charges to be imposed in connection with the
registration of any matter in the register or for the
disclosure of information held in the register.

(5) If building regulations make provision for the creation and
maintenance of a register, building regulations must make
provision for the register to be administered by, or by a person
acting on behalf of, the Secretary of State.

(6) Building regulations may make provision for the creation and
maintenance of a fund of a kind referred to in sub-paragraph (3)(c), including provision about—

(a) the administration of such a fund;

(b) the purposes for which proceeds from such a fund may
be used.

(7) Building regulations may make provision about—

(a) the calculation of payments to be made into a fund of a
kind referred to in sub-paragraph (3)(c);

(b) the maximum payment which may be required to be
made into such a fund in respect of a building.

(8) Paragraph 8(2) does not prevent building regulations from
providing for action within sub-paragraph (3) to be taken in
relation to a building erected before the date on which the
regulations come into force.”

(5) In paragraph 8(2) (requirement for building regulations not to apply to
buildings erected before regulations come into force, subject to exceptions)
after “Subject to sub-paragraphs (3) to (6) below and to” insert “paragraph
7A(8) above and”.”

Clause 31

Page 30, line 9, leave out “and 25” and insert “, 25 and (Provision in building
regulations for off-site carbon abatement measures)”

In the title

Line 9, after “charges;” insert “to make provision enabling building regulations to
provide for off-site carbon abatement measures;”

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