Climate Change Act – Section 72: fourteenth annual report

6. Need for the legislation

6.1 Section 73(2) of the Climate Change (Scotland) Act 2009 requires ‘an assessment of the continuing need or otherwise’ for Section 3F. If it is found ‘no longer to be necessary’ it, and Section 73, may be repealed by order.

Previous annual report

6.2 The previous annual report noted in its conclusion:

‘…that changes planned in building and heat standards may mean that Section 3F may not be required in the future.’

Legislation surpassed

6.3 It has already been established in this report that the effectiveness of the Section 3F legislation will be surpassed by the coming into force of NBHS. The Section 3F approach will be considering a smaller pool of emissions from new buildings once heating emissions are addressed.

6.4 Section 3F was introduced at a time when there was less national policy support for building level low and zero-carbon generating technologies, when there were higher emissions from new buildings and the national electricity grid, and before the new system of development planning had been considered. It focused on avoiding emissions from the use of new buildings through the use of low and zero-carbon generating technologies. National policies now go further and consider lifecycle as well as in-use emissions. National policies have targeted heating related emissions as a significant source. National policies look not for a proportion of emissions to be avoided, but for there to be zero direct heating emissions and for lifecycle emissions to be minimised.

Interaction with NBHS, building regulations and compliance calculation

6.5 It is unlikely to be possible to simply say in decision making on individual planning applications that Section 3F related policy has been achieved because the building has been designed to meet NBHS and associated building regulations. This is because the alternative position of a fossil-fuelled on-site heating source won’t be permissible for building warrant purposes.

6.6 In practical terms application of Section 3F and NBHS together means needing energy output of applied low and zero-carbon generating technologies beyond what is needed to meet NBHS. In addition, a calculation to demonstrate the Section 3F portion would be required, that isn’t required for the NBHS element.

6.7 Policies responding to Section 3F are predominately based on building regulations targets and consequently the building regulations compliance methodology can be important. That methodology will be withdrawn from 1 April 2024 and is not being replaced in Scotland, although will remain in place at a UK level. Emissions calculation is likely to form part of demonstrating compliance with NPF4 Policy 2, and the Energy Performance Certificate (EPC) system remains in place and includes reporting on present renewable energy systems.

6.8 The focus of Section 3F under NBHS will need to shift to non-heating fixed services (see paragraph 4.30). The electricity source for those is already significantly decarbonised at a source level. The application of a generating technology based approach to further emissions reduction may not be optimal, there may be other approaches, such as the passive approaches to temperature management highlighted in NPF4 Policy 19, that could be deployed.

Resource implications

6.9 The practical aspects of applying Section 3F type policies translate into a resource commitment for planning authorities and developers, in understanding how Section 3F type approaches can be achieved within the broader NPF4 and NBHS context. Resource commitments will also be required for planning authorities and stakeholders in preparing and engaging on the content of new style LDPs under the new planning system, where Section 3F policies will need to be included, in contrast to the new approach to development planning, that doesn’t require local development plans to repeat national planning policies. As such there are burdens on planning authorities, developers, and stakeholders in the continued application of Section 3F.

Conclusions

6.10 With the new system for new style local development plans in place, NPF4 providing a holistic planning approach to reducing emissions from new development, the introduction of NBHS from 1 April 2024, and the consequent withdrawal of compliance calculation methodology through building standards, on balance it is concluded that after 1 April 2024 the latest policy and regulatory position goes beyond what Section 3F can achieve and that the requirement to include policies within development plans under Section 3F is no longer necessary.

6.11 Removing Section 3F following the introduction of NBHS means there is no break in the overall policy support and push for GHG emissions reduction from new buildings, with low and zero-carbon generating technologies remaining supported.

6.12 Furthermore, removing Section 3F ensures that resources are used most efficiently and reflects a natural progression of policy that forms internationally strong leadership on emissions reduction, which will continue as NPF4 and NBHS are applied. NPF4, LDPs and NBHS will align over time as new style LDPs are adopted.