Background

The Deregulation Bill received Royal Assent on 26 March 2015 and is now known as the Deregulation Act 2015 (“DA 2015”). The Infrastructure Act 2015 (“IA 2015”) became law on 12 February 2015.

A number of key provisions relate to housing standards and energy efficiency and have direct implications for planning.

The Deregulation Act 2015

Section 42 of the DA 2015 introduces various ‘optional requirements’ into the Building Act 1984 (“BA 1984”). The BA 1984 empowers the Secretary of State (“SoS”) to make building regulations establishing the standards which must be met by building work. The DA 2015 inserts the new s.2B into the BA 1984:

“2B Optional requirements

  • Building regulations made by the Secretary of State in relation to England may include a requirement that applies only where a planning authority makes compliance with the requirement a condition of a grant of planning permission.
  • In the following provisions of this section, a requirement included in building regulations by virtue of subsection (1) is referred to as an “optional requirement”.
  • Building regulations may specify that an optional requirement is capable of applying only in respect of development of a kind described in the regulations.
  • Building regulations may specify conditions that must be satisfied before a planning authority may make compliance with an optional requirement a condition of the grant of planning permission.
  • Building regulations may specify the steps that a planning authority must take to inform a person subject to an optional requirement of the requirement.
  • Where building regulations include an optional requirement that would (to any extent) be inconsistent with another requirement imposed by the regulations, the building regulations must provide—  (a)that the other requirement does not apply in any case where the optional requirement applies, or (b)that the other requirement applies in any such case with modifications specified in the regulations.” [Emphasis added]

The Explanatory Note to the DA 2015 explains the motivation behind the amendment at paragraph 199. Local Planning Authorities:

“…have been including in their development plans requirements for dwellings to comply with further standards drawn from sources other than building regulations. There are over a hundred such standards. This multiplicity creates burdens of cost, bureaucracy and delay in the house building process. After a review and consultation, the government has decided that so far as is practicable all necessary technical housing standards should be included in the main building regulations.” [Emphasis added]

The use of ‘optional requirements’ means that the SoS can make building regulations that become binding requirements when included as a condition of a planning permission. The Explanatory Guidance goes on to say at paragraph 200:

Local planning authorities will be able, where circumstances justify it, to make it a condition of planning permission for developments that they comply with one or more such optional requirements, which will then apply to the development as building regulations requirements, and be inspected and enforced as such.” [Emphasis added]

Section 43 DA 2015 makes the necessary amendment to the Planning and Energy Act 2008 inserting section 1A in order to make it consistent with the consolidation of technical requirements into the building regulations:

“Energy policies

  • A local planning authority in England may in their development plan documents, and a local planning authority in Wales may in their local development plan, include policies imposing reasonable requirements for— 

(a) a proportion of energy used in development in their area to be energy from renewable sources in the locality of the development;

(c) development in their area to comply with energy efficiency standards that exceed the energy requirements of building regulations.

(1A) Subsection (1)(c) does not apply to development in England that consists of the construction or adaptation of buildings to provide dwellings or the carrying out of any work on dwellings.” [Emphasis added]

A written Ministerial Statement (Planning Update: Written statement - HCWS488 (“the Planning Update”)) details how the various changes should be applied by local authorities. It confirms that the optional requirements will apply to water and access, and a new national space standard. The statement goes on to explain:

“From the date the Deregulation Bill 2015 is given Royal Assent, local planning authorities and qualifying bodies preparing neighbourhood plans should not set in their emerging Local Plans, neighbourhood plans, or supplementary planning documents, any additional local technical standards or requirements relating to the construction, internal layout or performance of new dwellings. This includes any policy requiring any level of the Code for Sustainable Homes to be achieved by new development; the government has now withdrawn the code, aside from the management of legacy cases… [Emphasis added]

The wider position in respect of energy performance requirements is more confused. The Planning Update explains that:

“…For the specific issue of energy performance, local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill 2015.

This is expected to happen alongside the introduction of zero carbon homes policy in late 2016. The government has stated that, from then, the energy performance requirements in Building Regulations will be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4. Until the amendment is commenced, we would expect local planning authorities to take this statement of the government’s intention into account in applying existing policies and not set conditions with requirements above a Code level 4 equivalent.” [Emphasis added]

Section 57 of the DA 2015 removes certain provisions of the Climate Change and Sustainable Energy Act 2006, in particular it repeals section 3 which required local authorities to have regard to energy measures reports published by the SoS when carrying out their functions.

The Infrastructure Act 2015

Section 37 of the IA 2015 provides the SoS with powers to make off-site abatement measures in building regulations. Building regulations already allow for the setting of standards in relation to energy efficiency measures. Section 37 is an acknowledgement by government that it may not be cost effective or technically feasible to meet this standard through on-site measures alone. ‘Allowable Solutions’ allow for a portion of this target to be met by supporting off-site abatement measures.

“Fixing the Foundations”

In July 2015, however, the government published a command paper (Fixing the Foundations: creating a more prosperous nation (“Fixing the Foundations”)) in which it was announced that:

“The government does not intend to proceed with the zero carbon Allowable Solutions carbon offsetting scheme, the proposed 2016 increase in on-site energy efficiency standards, but will keep energy efficiency standards under review, recognising that existing measures to increase energy efficiency of new buildings should be allowed time to become established.”

This was something of a surprise given the recent enabling of the allowable solutions regime by s.37 IA 2015.

Analysis

The position in relation to water efficiency, access, space standards is that these will now be ‘option requirements’ in building regulations for dwellings.

It is also clear that planning authorities should not now set policy requirements relating to the construction, internal layout or performance of new dwellings.

The only exception to this is in respect of energy efficiency requirements which for the time being should not exceed a Code level 4 equivalent. This position will prevail until the commencement of amendments to the Planning and Energy Act 2008. Notably, this is a significantly lower standard than has been applied and much lower than the zero carbon emissions target that was intended to apply to new homes from 2016.

It is unclear when the commencement order will be made having regard to the Fixing the Foundations paper and the explanatory notes of the DA 2015. It is, however, likely that the commencement order will be made after the introduction of the 2016 increase in on-site energy efficiency standards but not before the new standards are set in the Building Regulations.

In short, it is now no longer possible for local authorities in England to impose conditions on planning permissions for dwellings relating to generalised energy standards, the provision of lifetime homes or (for the time being) in connection with energy efficiency requirements which exceed a Code level 4 equivalent.

It is worth noting that these changes do not affect obligations in relation to:

  • The provision of Energy Performance Certificates on the sale or letting of a dwelling; or
  • The Minimum Energy Efficiency Standard (“MEES”) that will make it unlawful to let a dwelling that has an energy performance rating lower than E, unless the landlord falls within one of the exemptions provided for in the MEES regulations.