Elva Carbery Planning & Environmental...

Climate Change Law & PolicyHow NZEB Fits?

National NZEB Conference5 March 2020

Royal Marine Hotel Dun Laoghaire

Elva Carbery

Planning & Environmental Solicitor

www.elvacarbery.ie

Climate Change Law & Policy: How NZEB Fits?

• Introduction

• NZEB Directive

• Climate Change Policy & Key drivers

• EU Framework & Targets

• Government Climate Change Policy

• NZEB & Building Regulation implementation

• NZEB compliance & enforcement

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NZEB Directive

• Directive 2010/31/EU (recast) on the energy performance of buildings 31 May 2018

• SI 183 European Union (Energy Performance of Buildings) Regulations 2019 which were published on 3 May 2019

• SI 292 European Union (Energy Performance of Buildings) (No. 2) Regulations 2019 which were published on 2 July 2019

• Effective date – 1 November 2019


NZEB DIRECTIVE - Recitals

• “The 2015 Paris Agreement on climate change following the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 21) boosts the Union’s efforts to decarbonise its building stock. Taking into account that almost 50 % of Union’s final energy consumption is used for heating and cooling, of which 80 % is used in buildings, the achievement of the Union’s energy and climate goals is linked to the Union’s efforts to renovate its building stock by giving priority to energy efficiency, making use of the ‘energy efficiency first’ principle as well as considering deployment of renewables.”


CLIMATE CHANGE POLICY & KEY DRIVERS

• KPMG 2019 Global CEO Outlook – climate change the top risk to organisational growth in 2019

• JP Morgan: “JP Morgan economists warn climate crisis is threat to human race” – leaked report

• Media & Public Scrutiny


WHAT IS CLIMATE CHANGE?

• What are we talking about?

• What is the measure of climate change

• Scientific consensus

• Drivers for policy – potential effects and the need to avoid, mitigate and adapt


APPROACHES TO CLIMATE CHANGE POLICY

• Precautionary Principle

• Mitigation

• Adaptation

• Green economics

• Conference of Parties (COP)


EU Framework & Targets

• EU 2020 Targets – 20% reduction in non-ETS GHG’s by 2020 from 2005 levels• EPA Projections 2020: “In terms of compliance with the EU’s Effort Sharing

Decision (Decision No 406/2009/EC) 2020 targets, Ireland’s non‐Emissions Trading Scheme emissions are projected to be 5% and 6% below 2005 levels in 2020 under the With Existing Measures and With Additional Measures scenarios, respectively. This compares to the target of 20% below 2005 levels by 2020.”



• EU 2030 Targets – 30% reduction in non-ETS GHG’s by 2030 from 2005 levels

• EPA Projections:• “In terms of 2030 reduction targets the EU Effort Sharing Regulation (ESR)

requires that Ireland reduce its non‐ETS emissions by 30% on 2005 levels by 2030. The latest projections indicate that Ireland will exceed the carbon budget over the period 2021‐2030 by 52 ‐ 67 Mt CO2 equivalent with the gap potentially narrowing to 7 ‐ 22 Mt CO2 equivalent if both the ETS and LULUCF flexibilities described in the Regulation are fully utilized.”



• EU 2050: Net Zero carbon emissions

• EU Emissions Trading Scheme – “cap and trade model”


National Climate Change Policy & Legislation

• The Climate Action & Low Carbon Development Act 2015

• Climate Action Amendment Bill 2019

• Climate Action Plan – Built Environment

• Climate Advisory Council Review – Built Environment

• SI 183 European Union (Energy Performance of Buildings) Regulations 2019 which were published on 3 May 2019

• SI 292 European Union (Energy Performance of Buildings) (No. 2) Regulations 2019 which were published on 2 July 2019


SI 183 EU (Energy Performance of Buildings) Regulations 2019• Date 3 May 2019

• Effective date: 1 November 2019

• Application: Article 6• “(1) These Regulations shall apply to works in connection with the design and construction of a new dwelling and to

works to an existing dwelling which undergoes a major renovation, where the relevant works or major renovation commence or take place, as the case may be, on or after 1st November 2019 except where –

(a) an application is made on or before 31st October 2019 for planning permission or approval pursuant to the Planning and Development Act 2000 (No. 30 of 2000) and where substantial work has been completed by 31st October 2020; or (b) a notice pursuant to the provisions of Part 8 of the Planning and Development Regulations 2001 ( S.I. No. 600 of 2001 ) has been published on or before 31st October 2019 and where substantial work has been completed by 31st October 2020.

(2) (a) All works to which these regulations apply must comply with the Building Regulations and the Building Control Regulations. (b) The provisions of the Building Control Acts 1990 to 2014 apply to these Regulations.”


EXEMPTED DWELLINGS: ARTICLE 5

“(a) a national monument for the purposes of the National Monuments Act 1930 (No. 2 of 1930), including a recorded monument under the provisions of Section 12 of the National Monuments (Amendment) Act 1994 (No. 17 of 1994) or a registered historic monument under the provisions of Section 5 of the National Monuments (Amendment) Act 1987 (No. 17 of 1987);

(b) a protected structure or proposed protected structure within the meaning of the Planning and Development Act 2000 (No. 30 of 2000).”


NEARLY ZERO-ENERGY BUILDING

• What does that mean?

• Defined under Article 4

“means a building that has a very high energy performance and the nearly zero or very low amount of energy required should be covered to a very significant extent by energy from renewable sources, including energy from renewable sources produced on-site or nearby.”

• Article 7 sets out the requirements for NZEB existing dwellings

• Article 8 sets out the requirements for NZEB new dwellings


EXISTING DWELLINGS: NZEB

• Article 7

“When a dwelling undergoes major renovation, the minimum energy performance requirement of the dwelling or the renovated part thereof is upgraded in order to meet the cost optimal level of energy performance in so far as this is technically, functionally and economically feasible.”


ARTICLE 8: NEW DWELLINGS NZEB

For new dwellings, the nearly zero energy performance requirements of this regulation shall be met by:

• (a) providing that the energy performance of the building is such as to limit the calculated primary energy consumption and related carbon dioxide (CO2) to that of a nearly zero energy building within the meaning of the Directive, insofar as is reasonably practicable, when both energy consumption and carbon dioxide emissions are calculated using the Dwelling Energy Assessment Procedure (DEAP) published by the Sustainable Energy Authority of Ireland;

• (b) providing that the nearly zero or very low amount of energy required is covered to a very significant extent by energy from renewable sources, including energy from renewable sources produced on-site or nearby;

• (c) limiting the heat loss and, where appropriate, availing of heat gain through the fabric of the building;


ARTICLE 8: NEW DWELLINGS NZEB

• d) providing and commissioning energy efficient space and water heating systems with efficient heat sources and effective controls;

• (e) providing that all oil and gas fired boilers shall meet a minimum seasonal efficiency of 90%;

• (f) providing to the dwelling owner sufficient information about the building, the fixed building services, their controls and their maintenance requirements so that the building can be operated in such a manner as to use no more fuel and energy than is reasonable.


SI 292 EU(ENERGY PERFORMANCE OF BUILDINGS) (NO.2) REGULATIONS 2019• Technical Guidance Documents

• Schedule 2 – Part L6 Conservation of Fuel and Energy Dwellings

• Building other than dwellings?

• Part L Conservation of Fuel and Energy – Buildings other than Dwellings (implemented under Building Regulations 2017)


COMPLIANCE & ENFORCEMENT

• Statutory mechanism unchanged

• Building Control Acts 1990 to 2014

• Building Control Authorities

• DEAP assessment – BCAR requirements

• Certificates


OFFENCES AND PENALTIES

• Failure to comply with the requirements of the Building Control Regulations 1997 to 2014 (Article 6A) shall be an offence to which section 17 (2) of the Building Control Act 1990 refers.

• Section 17 (2) Penalties“(2) A person guilty of an offence by reason of a contravention of section 3 (5) or 8 (6) or of an offence in contravention of building control regulations which is declared by such regulations to be an offence to which this subsection applies, shall be liable—( a) on summary conviction to a fine not exceeding € 5,000 , or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment and, if the offence is carried on after conviction, such person shall be guilty of a further offence and shall be liable on summary conviction to a fine not exceeding € 500 per day in respect of each day on which the offence is continued, or( b) on conviction on indictment, to a fine not exceeding € 50,000 or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and the imprisonment.”


OFFENCES AND PENALTIES

• Section 17(5)

“(5) Summary proceedings for an offence under this Act may be brought and prosecuted by the building control authority for the functional area in which the offence is alleged to have been committed.

(6) Notwithstanding the provisions of section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within twelve months after the date of the discovery of the offence but not later than five years after the date of the completion of any building or works in respect of which the offence is alleged to have been committed.”


CIVIL LAW RISKS

• Contractual/Common Law Risk

• Alleged breach of contract

• Certificate of Compliance and Completion

• Reasonable skill care and diligence


CONCLUSION

• Interaction between climate change law and policy and NZEB

• The importance of delivery and achieving 2030/2050 targets

• Strong legislative mechanism within the building sector to deliver


THANK YOU

• Questions?


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