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

Annex A: Notes on proposed amendment of regulations

A.1 Defining change in statute

Both regulations and standards focus on defining expected outcomes, with published guidance providing the details needed to achieve said outcomes in the case of the latter. Accordingly, regulatory changes to confirm a Scottish equivalent to the Passivhaus standard should only be sought where there is no current appropriate mechanism to deliver a required review outcome or a component of that outcome.

A.2 Defining change in regulations

The setting of requirements through regulations is intended to be precise and prescriptive in the description of a defined outcome. With few exceptions, current regulations applicable to construction work do not set detailed prescription on specific built outcomes. The exception to this is recent amendment to regulation 8, where the specification for the performance of particular building elements (relating to fire safety) are prescribed. The current delivery of energy and environmental standards is achieved with only high-level provisions set out within regulations.

Accordingly, there must be certainty that the level of prescription and lack of flexibility associated with a direct regulatory provision is justifiable and cannot be achieved by other means.

A.3 Defining change within the mandatory standards

It is the nature of the mandatory standards set out in schedule 5 to regulation 9 that they are better able to describe general outcomes than offer overt prescription on solutions to achieve compliance. The are few exceptions to this position and also, again with limited exceptions, the standards, as descriptions of functions or outcomes, seek to avoid use of numeric indicators. Such indicators are generally only used to define the scope of application of the standards.

A.4 Defining change in guidance

The nature of the current implementation of the regulations and the use of the mandatory standards set out in schedule 5 to address specific functions or outcomes of construction work means that much of the detail on what ‘is expected’ in terms of compliant solutions is set out in supporting guidance within the BSD Technical Handbooks.

This is the most common means of effecting change where a topic is already addressed by a given standard or regulation. Defining expectation though guidance, which will offer the most common means of achieving the outcome the regulatory element seeks, provides a degree of flexibility which is generally beneficial, supporting both innovation and cost effective solutions to requirements.

A.5 Commentary on final proposal to Parliament

Internal review has not identified any regulatory changes which would be essential to the delivery of the potential scope of change currently proposed. The present application of standard and supporting guidance would generally be robust enough to deliver the intended outcomes provided that there were sufficient specific indicators of the key actions expected set out in guidance.

However, the key word in that assessment is ‘expected’. Guidance cannot mandate a particular action, particularly where there are viable alternative options which deliver at least as effective an outcome. Guidance is an effective tool in defining ‘expectation’. If a particular outcome must be achieved or delivered in a particular way, guidance alone may not suffice. Reference can be made again to the expansion of regulation 8 to address specific risks arising from combustibility of external wall cladding systems.

The need for regulatory change in December is linked to the level of prescription required to deliver the proposed overall ‘standard’. The outcomes sought are:

• Improved targets from new construction which further reduce to delivered energy needed at the building; robust environmental standards to address thermal comfort and indoor air quality.
• Improved assurance of process to demonstrate that the standards required are delivered in practice.

The potential areas of prescription that may be needed to deliver the above are:

• Declaration by responsible person on the approach which will be taken and the parties engaged to deliver the required outcome for the building.
• The manner in which outcomes are set or to be demonstrated. This may recognise note than one route.
• Prescription on specific performance outcomes or elements where these are deemed essential to support the broader outcome sought by an improved standard.
• Exceptions to the application of a given standard.
• Requirements on the reporting of information at design stage to demonstrate competence of approach, effective communication and risk management.
• Requirements for reporting of information at construction stage to show that design intent is clear, understood and implemented correctly.
• Evidence of testing and commissioning.
• An expanded or additional attestation of compliance, supported by a summary of process and key documents.

A.6 Interaction with the ongoing Compliance Plan approach and planned broader legislative change.

Information on the current Compliance Plan workstream can be found at: Compliance plan approach workstream - Building standards - Futures Board Programme: workstream information - gov.scot (www.gov.scot). Initial views on the Compliance Plan approach were sought through consultation in 2021/22.

Whilst the Compliance Plan (CP) approach is focussing initially on high risk buildings and will seek to address life safety issues foremost, it will provide the means of delivering a more robust approach to compliance across the building standards system.

Work will continue to provide assurance that there is compatibility between broader proposals and any confirmed amendments to regulations and processes to deliver this current review. The energy standard review can be seen as a test case for how broader compliance topics can be developed, tested and implemented within the planned CP regime.

It is recognised that there is the potential that later publication of regulations to implement the CP approach may repeal and replace certain provisions introduced in December, should a given topic then be addressed within the broader scope of the CP regulations.

A.7 Recommendation

It is recommended that detailed proposals be put forward in consultation to seek views on topics such as the level of prescription in target setting or in evidencing a robust approach to compliance – elements needed to support a more effective implementation of standards and achieve the outcomes sought by this review, those again being:

• Improvements to the setting of energy performance and ventilation standards for new buildings, leading to lower energy demand (and reduced running costs) and a healthy indoor environment.
• This should be a level of action, deliverable at a national level, which reflects the needs of building users and strategic policy objectives around climate change, energy policy and the built environment.
• Improvements to the design and construction process to give greater assurance that compliance, and therefore the performance sought, is delivered in practice.

At present there are no changes to regulations identified as essential to deliver ‘a Scottish equivalent to the Passivhaus standard’. There are, however, several candidate topics where amendment of regulations would be conditional on the confirmed scope of change. Or to enabling a more direct and specific approach to a number of topics, primarily relating to implementation of a more detailed reporting to increase assurance of compliance with the regulations.

A.8 Candidate changes

The Building (Scotland) Regulations 2004

• Introduction of new defined terms presented in Regulation 2.
• Introduction of prescription on action to address specific aspects of the delivery of work within Regulation 8 (Durability, workmanship and fitness of materials), if justified and no simpler mechanisms identified.
• Four potential candidates amongst relevant mandatory standards (schedule 5 to regulation 9) on the topics of ventilation (3.14), energy demand (6.1), building insulation envelope (6.2) and commissioning of building services (6.7), including:
• Review of standard 6.1 to recognise validated Passivhaus certification at design and completion stages as an alternative to a compliance calculation.
• The potential for prescription on the face of the relevant standard if a specific approach to compliance is justified and de-risked.
• Potential use of Regulation 11 (Building standards – service, fitting or equipment) to introduce prescription on action during construction to increase assurance that design intent is achieved. Again, if justified and no simpler mechanisms identified.
• The option to define a new and specific requirement under a new regulation if a required change is needed and no other appropriate route is identified.

The Building (Scotland) (Procedures) Regulations 2004

• Introduction of new defined terms presented in Regulation 2.
• Additional prescription within Regulation 4 (making an application for building warrant) and/or Regulation 41(submission of completion certificates) on the type of information which must be provided to the verifier at such points in the building standards process to demonstrate competent process on relevant matters.

A.9 Next Steps

Review and update the above assessment following responses to this Stage 1 consultation. Based upon the proposed work programme, changes to regulations should be established in principle as either essential to deliver the review outcomes or the most effective way of signalling any required change in process.

Update and agree a list of relevant regulatory changes to progress the laying of amending regulations in December 2024.