Building regulations - energy and environmental standards: consultation on proposed changes

1 Introduction and how to respond to the consultation

1.1 Introduction

1.1.1. Purpose

The purpose of this review is to consider changes to the standards and processes set within The Building (Scotland) Regulations 2004 (as amended) and associated regulations (building regulations) to introduce a Scottish equivalent to the Passivhaus standard. The intent is that these changes will further improve the energy and environmental performance of new buildings and provide greater assurance of regulatory compliance, to deliver buildings that perform as intended.

This consultation is the first of two which will consider the technical, commercial and wider policy implications of improvements to energy and environmental standards. This is done in the context of broader action by the Scottish Government on climate change, to further our ambition of becoming a net-zero society by 2045.

This consultation does not set out the details of proposed new standards or performance targets. That will be set out in a further consultation in summer 2025.

Instead, this consultation seeks views on the form and approach that a Scottish equivalent to the Passivhaus standard, implemented through building regulations, should adopt (Sections 2 to 4). It also seeks information on the implementation of the 2023 energy standards (section 5) to assist in the development of our second consultation in 2025. Section 6 of this document sets out the proposed delivery timetable for this review beyond December 2024.

1.1.2. The driver for the current review

In December 2022 the then Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights confirmed that, in response to Alex Rowley MSP’s Proposed Domestic Building Environmental Standards (Scotland) Bill, the Scottish Government would make subordinate legislation by 14 December 2024 to give effect to Mr Rowley’s final proposal “to introduce new minimum environmental design standards for all new build housing to meet a Scottish equivalent to the Passivhaus standard, in order to improve energy efficiency and thermal performance”.

A further review of energy standards within building regulations was commenced at the beginning of 2023 to consider further improvements to the standards set with a focus on two outcomes:

• Improvements to the setting of energy and environmental (ventilation) performance standards for new buildings, leading to lower energy demand (and reduced running costs) and a healthy indoor environment; and
• Improvements to the design and construction process to give greater assurance that compliance, and therefore the performance sought, is delivered in practice.

Following Ministerial agreement, an industry Working Group was convened in June 2023 with a role to offer advice and expertise to the Scottish Government to help define how an equivalent to the Passivhaus standard will look in Scotland.

Themed industry workshops were held through Autumn/Winter 2023 to gather feedback on a number of topics related to very low energy building design and construction. Working Group members and wider industry stakeholders have been actively engaged in the review process to date. However, a position of consensus on what a Scottish equivalent to the Passivhaus standard should look like has so far not been reached.

This review considers both domestic and non-domestic buildings. Any standard that is introduced will apply to every new building constructed in Scotland. It must be deliverable in practice nationally. The form that provisions will take and the level of challenge set by improvements to targets and processes should reflect this scope of application.

Information on the review process to date can be found at: https://www.gov.scot/groups/energy-standards-review-scottish-passivhaus-equivalent-working-group/.

This review is not simply a response to the above final proposal, but an opportunity to determine what further beneficial change can be set out for our new buildings, particularly in relation to improved evidence to demonstrate compliance with standards.

1.1.3. The Scottish building standards system

The building standards system in Scotland is established by The Building (Scotland) Act 2003 (The 2003 Act). The purpose of the building standards system is to protect the public interest. The system regulates building work on new and existing buildings, to provide buildings that meet reasonable standards which:

• Secure the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,
• Further the conservation of fuel and power, and
• Further the achievement of sustainable development.

The building standards system is pre-emptive and is designed to check that proposals meet building regulations. The main principles of the system are that a building warrant must be obtained from a verifier before work commences on site and a completion certificate is accepted by a verifier if, after undertaking reasonable inquiry, they are satisfied the building work meets the building regulations, prior to the building being occupied. The thirty-two local authorities in Scotland are appointed by Scottish Ministers as verifiers to administer the building standards system in their geographical areas. Responsibility for compliance with the building regulations lies with the “relevant person” as the party instructing building work and, ultimately, with the building owner.

Requirements applicable to building work are set through Building Regulations as a set of mandatory functional standards. These are simple statements on what outcomes must be achieved when undertaking building work. These standards are supported by a body of guidance set out in Domestic and Non-domestic Technical Handbooks. This published guidance assists by defining the scope of action expected under each standard by providing one or more examples of how compliance with the standard can be achieved. Noting that the standards can also be met through solutions not included in published guidance.

The Building Standards Division (BSD) is part of the Scottish Government Directorate for Local Government and Housing. Our purpose is to provide and maintain a robust legislative framework to ensure that the buildings standards system in Scotland protects the public interest. The BSD prepares and updates building standards legislation and guidance documents, conducting any necessary research and consults on changes as The 2003 Act requires.

We also work in partnership with Local Authority verifiers in the delivery of the system and contribute to wider policy objectives of government on issues such as energy efficiency, climate change and building safety.

1.1.4. Energy and environmental standards within building regulations

Since the introduction of national building regulations to Scotland in 1964, there have been energy standards, in one form or another. Initially these only applied to the external fabric of certain residential buildings and were minimal in nature. Later, they evolved to take account of commercial and industrial non-domestic buildings and to address the energy efficiency of those building services essential to provide comfort to occupiers of buildings.

Prior to 2000, reviews of energy standards were less frequent, with the outcome of such reviews resulting in modest standards that kept pace with change but which could be comfortably achieved by all aspects of industry. An impact assessment carried out on subsequent changes over this era would show a cost-benefit for modest improvements which would pay back quickly through reduction in the occupier’s energy bills.

Following the introduction of The 2003 Act and our current system of building standards in May 2005, energy standards within section 6 of the Building Standards Technical Handbooks were reviewed and improved in 2007, 2010, 2015 and most recently in February 2023. For new buildings, 2007 saw the introduction of a single means of demonstrating compliance on the basis of calculated carbon dioxide emission targets, using a Standard Assessment Procedure (SAP) for dwellings and Simplified Building Energy Model (SBEM) (or equivalent) for non-domestic buildings.

Each review introduced further staged improvement to energy standards and related changes on topics such as ventilation. It is assessed that emissions arising from energy use in new buildings constructed to the February 2023 standards are, on aggregate, around 32% lower for new homes and 20% lower for new non-domestic buildings, compared to the previous 2015 standards and more than 80% lower than standards in force in 1990, the baseline reporting year for CO₂ emissions.

Key actions taken forward in the February 2023 standards include:

• A focus on actions at a building level that reduce energy demand, including improved fabric insulation in new homes, to reduce space heating demand.
• The introduction of a new energy target for new buildings, measuring ‘delivered energy’ (that which is supplied to the building).
• In setting targets for new buildings, an amended approach for on-site generation of power, excluding credit for energy exported from the building.
• A simplified process when connecting a new building to a heat network (standardising the building performance needed to comply).
• Changes to ventilation standards to reflect the expectation of improved levels of insulation, resulting in reduced air leakage/infiltration.

A further, specific change was introduced this year by the New Build Heat Standard, which applies to new buildings and certain conversions where a building warrant application was submitted from 1 April 2024. The new standard (6.11) requires, with few exceptions, that new buildings must no longer use ‘direct emission heating systems’ for space or water heating or cooling.

1.1.5. Scotland’s Climate Change Act

The Climate Change (Scotland) Act 2009 (The 2009 Act), which originally received Royal Assent on 4 August 2009, remains the key commitment of the Scottish Government and is the most far-reaching environmental legislation considered by the Scottish Parliament during the first ten years of devolution.

The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 (The 2019 Act), which amends The 2009 Act, sets targets to reduce Scotland’s emissions of all greenhouse gases to net-zero by 2045 at the latest.

Our target on net-zero emissions by 2045, five years ahead of the rest of the UK, is firmly based on what the independent Committee on Climate Change advise is the limit of what can currently be achieved.

With the introduction of the New Build Heat Standard in April 2024 there is a shift in the way we heat our new buildings. New buildings will now contribute ‘zero direct emissions’ from regulated energy use which positively contributes to achieving our 2045 climate targets. A further step reduction in delivered energy will reduce total upstream emissions associated with the energy use in the operation of these new buildings. The review also offers another opportunity to set out how action through building regulations may best support our broader net zero objectives. Commentary on related topics is provided in section 5 of this document.

1.1.6. Scottish Government Heat in Buildings Strategy

We published the Heat in Buildings Strategy in October 2021, which set out our vision for decarbonising Scotland’s buildings by 2045. We remain committed to this vision and continue to lay the foundations which will support the growth of the clean heat and energy efficiency sectors in Scotland. This includes introducing the New Build Heat Standard in April 2024, consulting last year on proposals for a Heat in Buildings Bill to decarbonise the existing building stock and a new Social Housing Net Zero Heat Standard for the social housing sector.

As set out in the Heat in Buildings: progress report 2023, in line with the requirements of Section 61 of the Climate Change (Scotland) Act 2009, we have reviewed the Heat in Buildings Strategy. In order to bring the Strategy up to date with latest developments, the review has concluded that the strategy should be varied, and we will do so in due course

1.1.7. Scottish Government Fuel Poverty Strategy

Our fuel poverty strategy, published in 2021, sets out a range of actions being taken to tackle this issue. This includes the target that no more than 5% of households will be in fuel poverty by 2040. It is important that we minimise the likelihood of new homes contributing to these figures and recent review of energy standards for new homes, delivered in 2023 and 2024 were cited as part of the strategy. This current review again references the Passivhaus standard as an exemplar, continuing elements discussed in our previous 2021 consultation.

We want our regulations and standards to deliver homes that are warmer and cheaper to heat and which also produce zero emissions from heating. This will help us to ensure that we meet both our climate change and fuel poverty targets. In some instances, households may require access to affordable warmth 24/7, emphasising the importance of achieving high energy efficiency standards for households in fuel poverty and ensuring that those most exposed to the health risks of living in a cold home are prioritised for support, with a reduction in heating demand and in turn lower household energy bills.

In developing detailed proposals for further consultation in 2025, we intend to present an illustration of how further improvement to the energy efficiency of new homes, will contribute to the delivery of our Fuel Poverty strategy and our targets for 2040.

1.2 The Consultation Process

1.2.1. Scope of this consultation

This consultation is the first of two which are planned for the current review. It sets out the proposed form for a Scottish equivalent to the Passivhaus standard and explains the proposed rationale for the components of the standard and the outcomes we seek to deliver. It seeks your views on this proposal and, specifically, the relevance of components of the voluntary Passivhaus standard to application through national regulations.

The outcome sought from this first stage of the review is assurance on the component actions that are to be progressed though further consultation in 2025. This will enable confirmation of any relevant changes needed to the secondary legislation which currently delivers our building standards system. Such enabling changes would be made by amending relevant regulations in December 2024.

The second consultation will be launched in Summer 2025, setting out the detail on the extent of proposed changes, both to improve targets, standards and guidance and to improve compliance processes. This will be supported by draft versions of updated compliance tools.

1.2.2. Consultation documents

This consultation comprises of the following elements:

• Consultation proposals and questions (this document, published in html and pdf) with a Draft Business and Regulatory Impact Assessment (Stage 1 review). Included as Annex B.
• The online consultation form for your response.
• A Respondee Information Form and list of consultation questions is provided in Word format on the consultation webpage for consultees who are not able to provide a consultation response online.

Any other related draft impact assessments will be listed on the consultation webpage.

References are made within this document and the review webpage to external resources produced as part of the review process to date. Consultees may find these useful in setting out engagement and discussion on the review topic to date.

1.2.3. The Scottish Government consultation process

Consultation is an essential part of the policy-making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work. You can find all our consultations online. Each consultation details the issues under consideration, as well as providing a way for you to give us your views – either online or by post.

Responses will be analysed and used as part of the decision-making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise, the responses received may:

• indicate the need for policy development or review,
• inform the development of a particular policy,
• help decisions to be made between alternative policy proposals, or
• be used to finalise legislation before it is implemented.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

When responding to questions which offer a choice of responses, please also provide information or evidence to explain your view on the topic wherever possible. This assists us in assessing and understanding the reason for your view and presenting the overall picture when reporting on each topic and on the overall proposal in general.

1.2.4. Responding to this consultation

This consultation runs for 12 weeks from Wednesday 31 July 2024.

We are inviting responses to this consultation by Wednesday 23 October 2024.

Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted by the closing date of Wednesday 23 October 2024. If you use Citizen Space to respond, you will receive a copy of your response via email.

If you are unable to respond via Citizen Space, please complete the Respondent Information Form (please see supporting documents) and the consultation questionnaire available on the consultation webpage and return to:

Consultation: Proposed changes to energy and environmental standards

1.2.5. Handling your response

If you respond using Citizen Space, you will be directed to the ‘About You’ page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published we will regard it as confidential and we will treat it accordingly.

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under that Act for information relating to responses made to this consultation exercise.

To find out how we handle your personal data, please see our privacy policy.

1.2.6. Next steps in the process

Following the consultation closing date, all responses will be analysed and considered along with any other available evidence provided. After we have checked that they contain no potentially defamatory material, responses will be published (where we have been given permission to do so) on the consultation webpage.

The Scottish Government will review consultation responses received and the issues raised during engagement with stakeholders to determine the extent of regulatory change needed to support this review and to inform the second stage consultation during 2025. A consultation analysis report and Scottish Government response will then be published on the consultation webpage. It is the intent that any regulatory changes will be confirmed in December 2024.

1.2.7. Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to:

Consultation: Proposed changes to energy and environmental standards

Email: bsdenergystandardsreview@gov.scot