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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Climate change - overview
The Stern Review confirmed climate change as an essential factor to be taken into account when planning land use and development. Climate change will affect every home and business. Developers, investors and their professional advisers need to address the effects at each stage - from buying land to completing the development and beyond.
What are the risks?
costs - failure to adapt to climate change could mean that a development will be too expensive to run, too uncomfortable to live or work in, and even uninsurable later in its life. This will have serious implications when owners attempt to sell or let the property
legislation - building regulations and standards are imposing increasingly strict duties. By failing to take voluntary measures now (anticipating future requirements), there is a risk that more expensive remedial measures and 'retrofitting' might be required (eg on refurbishment, sale or letting) to ensure compliance as legislation comes into force
reputation risks - an organisation's brand could be harmed if a failure to address climate change were to threaten the sustainability of a building, development or land; for instance, because flooding or high temperatures would make the building unusable
increased weather risks - such risks are already increasing by 2-4% per year on household and property accounts as a result of changing weather patterns. Claims for storm and flood damage in the UK doubled to more than £6bn over the period 1998-2003, with the prospect of a further tripling by 2050
Climate change mitigation
Buildings produce around one-half of the UK's greenhouse gas emissions, so the government is pressing for buildings to be designed, built and used in the most energy-efficient manner if its target of a 60% cut in CO2 emissions by 2050 is to be met.
Energy performance certificates ('EPCs') are now required for most residential and commercial buildings. Display energy certificates ('DECs') are required for public sector buildings. Their purpose is to assess energy performance and to recommend improvements. Only temporary buildings, industrial sites, and premises of less than 50m2 are excluded.
Airtightness is a vital component of sustainable design. Buildings that are not airtight cause their mechanical ventilation air conditioning systems to struggle to maintain comfort conditions. A leaky naturally-ventilated building will suffer poor control, draughty conditions, and, in all likelihood, excessive energy consumption for heating. Airtightness testing is now a legal requirement. A new building that fails its airtightness test may be unusable.
Climate change adaptation
DEFRA states: 'even if we stopped all global emissions tomorrow we would still expect to see 30 to 40 years of climate change, and over 100 years of sea level rise. This means that whatever we now do to reduce greenhouse gases, some climate change is inevitable. Our climate is changing now, climate change is bringing and will continue to bring implications for many aspects of the natural environment, society and economy. Alongside efforts to cut emissions, we must also adapt to unavoidable climate change'.
Climate change adaptation now has explicit legislative force. Planning authorities must devise, implement and deliver policies designed to produce 'climate resilient' infrastructure and developments. Key elements are:
managing flood risks
managing water resources
managing heat risks and air pollution
managing ground conditions
How should professionals react to these developments? It is clear that best practice is becoming more rigorously defined and requires detailed consideration both of the initial effect of a development and of its ability to withstand climate change over the lifetime of the building, which could be 50-70 years.
The effects of climate change can now be regarded as being reasonably foreseeable and at every stage - from initial instruction, through the design and planning process to construction and beyond - it must be incumbent upon professional advisers to ensure that appropriate steps have been taken to address the impacts.
When acting for subsequent buyers or prospective tenants, it is necessary to ensure that full information is obtained in respect of the climate-proofing of the building. At one level, implementation of the Energy Efficiency Directive has made this process easier as the energy-efficiency rating of a building becomes a matter of public record. However, where a building is given a poor rating, or where its climate-change resilience is inadequate, attempts will no doubt be made to render the design team and other professional advisers liable. In those cases, the best defence would be to show what measures were considered and rejected, and upon what basis. For example, design teams and advisers may well find a defence in clear, contemporaneous records that show recommendations as to materials or site layout being overruled by clients on grounds of cost or upon the basis that the anticipated lifespan of the building will have expired by the time problems become apparent.
Disputes might also arise where planning or other necessary consents have been refused because the application failed to take account of key factors, such as those set out in the checklist. In those cases, it might reasonably be argued that the instruction - express or implied - to the design team and planning consultant was to produce an application that would pass muster as far as sustainability and climate resilience was concerned.
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