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 carbonsaving 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
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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
Act 1984. 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
powers showing compliance with the zero carbon standard by use of allowable
solutions to be 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.
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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, or making 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
certificates attesting 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 proceeds may 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.
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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 an alternative way 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.
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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—
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(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”.”
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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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