Obligations on Local Authorities to Retrofit

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Part Three: Obligations on local authorities to retrofit

Summary

• There are currently no obligations on local authorities (‘LAs’) to retrofit the built environment in England.
• However, LAs will be subject to improved energy standards from 2025 that apply when refurbishments are carried out, thus leading to retrofit energy efficiency measures.
• In the meantime, LAs are allowed to use their statutory powers to require standards of energy efficiency that are above those set down in legislation.

No net zero targets for buildings

• Retrofit energy efficiency measures include the introduction of new materials, products and technologies into an existing building to improve its energy efficiency. At present, there are no statutory targets for transforming existing buildings in England to zero carbon.
• Instead, the government had or still has in place measures to reduce greenhouse gas emissions from existing buildings, such as:
  • The Energy Company Obligation was created to offset emissions by requiring suppliers to promote measures to reduce carbon emissions and tackle fuel poverty. The latest ECO4 Order came into force in July 2022 and covers a four-year period until March 2026.
  • The Green Homes Grant which closed to applications in March 2021 and provided vouchers to homeowners or landlords who wanted to make energy efficiency improvements to their homes with a maximum government contribution of £5,000 (or £10,000 and up to 100% of the cost of the improvement where someone in the household receives certain benefits).
  • The Energy Savings Opportunity Scheme (‘ESOS’) for larger companies and non-public sector organisations. This is a mandatory energy assessment scheme, introduced by the UK government to make sure large enterprises in the UK are energy efficient. Under the scheme, large organisations are required to assess their energy usage every four years and to find new ways to save energy.
  • An energy-saving target for central government buildings by 31 December 2020, as set out in the Energy Efficiency (Eligible Buildings) Regulations 2013 which set targets for central government buildings.
  • The minimum energy efficiency standards (MEES) set out in the Energy Efficiency(Private Rented Property) (England and Wales) Regulations 2015. This set targets for a minimum energy efficiency level for domestic private rented properties, set and enforced by the Government.
  • Requirements concerning metering and billing for district heating, district cooling, and communal heating and hot water systems as set out in the Heat Network (Metering and Billing) Regulations 2014.
• However, the above measures do not amount to a set of targets and coherent powers of LAs.
• For completeness, the government had set zero carbon targets for new buildings (not relevant for retrofit), which it subsequently abandoned. Instead, the government indicated it would keep energy efficiency standards under review. These targets were as follows:
  • All new homes to be zero carbon by 2016 (subject to a proposed exemption for smaller developments);
  • All new non-domestic buildings to be zero carbon by 2019;
  • All new public buildings to be zero carbon by 2018; and
  • All new schools to be zero carbon by 2016.

Building Regulations

• A key part of future policing and regulation of retrofit works is likely to arise via the Building Regulations.
• The Building Regulations set standards for the design and construction of buildings to ensure the safety and health for people. They also set requirements in respect of ventilation and conservation of fuel and power.
• The Building Regulations regime in England and Wales are made under a series of statutory instruments and are regularly updated.
• In addition to the Building Regulations themselves the Government published Approved Documents which offer associated guidance to enable compliance.
• In very general terms the Building Regulations apply to almost all types of building works. They also apply to almost all types of building. The Building Regulations require approval for the majority of building works. This can be provided by local authorities or other inspectors. Local councils’ police the Building Regulations but a local authority may take a range of actions for breach of the Building Regulations (including enforcement notices, injunctions and prosecution). Councils may also refuse to issue a completion certificate to confirm compliance with the building regulations, but this may cause problems on any future property sale. The Building Regulations regime is currently subject to updates as a result of the Building Safety Act 2022.

Future Buildings Standard

• While there are no statutory targets at present for turning existing buildings in England into zero carbon buildings, a new building standard is scheduled to be implemented from 2025.
• Retrofit energy efficiency measures apply to existing buildings only. Regarding existing domestic and non-domestic buildings, the Future Building Standard (‘FBS’) proposes:
  • Changes to Parts L (conservation of fuel and power) and F (ventilation) of the Building Regulations 2010 and the associated approved document guidance for non-domestic buildings;
  • Improvements to the non-domestic energy modelling methodologies and the standardsthat apply when refurbishments are carried out in non-domestic buildings; and
  • Improvements to energy and ventilation standards when refurbishments are carried outin domestic buildings.
• In December 2021, the government published its response to its January 2021 consultation onthe FBS, which sets out:
  • A plan to implement the FBS from 2025; and
  • Measures for the interim amendments to the Building Regulations 2010 and newapproved documents.

  Implementation of FBS from 2025

• According to the January 2021 consultation outcome, the government is working on aStatement of Intent that will consider what more needs to be done by government and industryto deliver net zero buildings by 2050.
• The FBS will not prescribe specific technologies for achieving its performance standards.However, the government expects that heat needs will primarily be met through heat pumpsand heat networks, and that direct electric heating will have a minor role.
• Ahead of FBS coming into effect, a technical specification will be consulted on in 2023 by theDepartment for Levelling Up, Housing and Communities. This may include different timelinesfor different building types.
• The necessary legislation should be introduced in 2024, ahead of FBS implementation in 2025.
  Interim amendments to Building Regulations
• Interim amendments to the Building Regulations 2010 were made through the BuildingRegulations etc (Amendment) (England) Regulations 2021 which came into force on 15 June2022.
• These interim amendments apply to new buildings only and are, in consequence, irrelevant for
  retrofit purposes.

Local Authorities scope of action

• As explained above, it is not mandatory for LAs to conduct retrofit energy efficiency measuresin the built environment.
• The Planning and Energy Act 2008 permits LAs to require standards of energy efficiency thatare above those set down in Building Regulations 2010 and can also require a percentage ofthe energy used in the development to be sourced from renewable energy.
• These powers allow LAs to require anyone applying for planning or Building Regulation consentto adopt standards nearer to net zero for new buildings only.
• However, LAs are currently allowed to require higher standards for retrofit energy efficiency measures than those set down in legislation.
  • The general power of competence under section 1 of the Localism Act 2011, which enables LAs “to do anything that individuals generally may do”, and
  • Section 111 of the Local Government Act 1972, which enables LAs “to do anything… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.
• LAs should make sure the use of these powers fit their own climate change policies and, eventually, the FBS and the Energy Bill (currently going through Parliament) when enacted.

Sources Used in this Publication:

• https://www.homebuilding.co.uk/advice/future-homes-standard
• https://uk.practicallaw.thomsonreuters.com/6-205-6049
• https://uk.practicallaw.thomsonreuters.com/2-375-5085
• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/443897/Productivity_Plan_print.pdf
• https://www.gov.uk/government/consultations/the-future-buildings-standard

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.