Climate Change Act – Section 72: fourteenth annual report

3. Understanding the legislation and guidance on it

Responsibility for implementation

3.1 The provision in Section 3F is a requirement for relevant policy to be included in local development plans (LDPs). It is therefore a responsibility of planning authorities.

3.2 That requirement does not over-ride Section 25 of the Town and Country Planning (Scotland) Act 1997, which is clear that decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise. Development plan policies do not operate as a check-box list of mandatory compliance criteria for new buildings. The relevant policies and any other material considerations relating to a planning application are identified and given such weight for decision making as determined appropriate by planning authorities.

Operational emissions

3.3 The legislation aims to ‘avoid’ (or save) emissions otherwise created from the operation and use (known as operational emissions) of new buildings. This excludes construction and demolition of the building and transport to and from it. Therefore, emissions savings relate to emissions otherwise created through heating, and the electricity used for operation of the services within a building. Non-heating services include those that are fixed, like lighting and mechanical ventilation, and are generally powered by electricity. In practice moveable electronic appliances in homes and other plugged-in devices such as for industrial and commercial processes, among other things, do not form part of building level operational emissions calculation methodology as has been deployed for compliance calculation for building regulations.

Low and zero-carbon generating technologies

3.4 Section 3F operates on the basis that there are emissions from the energy source for the operation and use of the building that can be avoided, by using low and-zero carbon generating technologies at the building to provide energy instead. The legislation seeks only the use of generating technologies to achieve the avoidance, not energy efficiency measures such as improved glazing or more energy efficient building fabric such as additional insulation.

Amount of emissions to be avoided

3.5 The legislation operates on the basis that the low and zero-carbon generating technologies will avoid a proportion of the emissions otherwise to be created by the operation and use of the building. It does not specify the proportion of emissions to be saved, that is identified locally by planning authorities. It does not require that the technologies will avoid all emissions otherwise created by the operation and use of the building.

Matters for reporting

3.6 In addition to the statutory requirements for reporting set out by Section 73 of the Climate Change (Scotland) Act 2009, the Thirteenth Annual Report^[3] (the ‘previous annual report’) (Laying number SG/2023/40) set out that future reports will consider:

• how the reporting requirements of the Climate Change (Scotland) Act 2009 can be met proportionately in relation to the new system of local development planning arising from the Planning (Scotland) Act 2019;
• how annual reporting should continue to be used as a means of providing guidance to planning authorities and developers; and
• whether the changes to building and heat standards outwith the planning system mean that Section 3F is no longer required.

These matters are addressed in this report.

Guidance

3.7 LDP policies implementing the legislation should have three elements:

• a proportion of emissions to be saved;
• at least one increase in the proportion of emissions to be saved; and
• a requirement that savings should be achieved using generating technology (rather than energy efficiency measures).

3.8 The previous annual report referred to research^[4] commissioned by the Scottish Government and published in 2021. This research aimed to identify a nationally applicable set of terms that would comply with the three elements required by Section 3F. The research proposed that the approach closest to the requirements of Section 3F, does not specify on the face of the policy an increase in the proportion of greenhouse gas emissions to be saved. Whilst the Scottish Government has made this research available, it does exemplify the challenge in making Section 3F operable.