Passivhaus standard - determining the principles for a Scottish equivalent: SG response part 1 - regulatory changes

3 Amendment of Regulations

3.1 Current Law

The current law is contained in secondary legislation, primarily The Building (Scotland) Regulations 2004 and The Building (Procedures) (Scotland) Regulations 2004.

3.2 Enabling Powers

Enabling powers for the confirmed change to subordinate legislation are conferred by sections 24(2) and 33 and schedule 3 of the Building (Scotland) Act 2003.

In proposing amendments to regulations, the Scottish Government referred to the current means by which the mandatory provisions set under schedule 5 to regulation 9 of the regulations are already achieved. This is through both regulation and standards and through supporting guidance issued under section 4(2) of The Building (Scotland) Act 2003. The proposed amendments also set out options to introduce one or more new regulations should the outcome sought not be covered by current provisions and the consideration of change to procedural regulations setting out requirements for information in support of the building warrant process.

It is also important to note that the final outcome in respect of revision of building performance targets, calculation methodologies and supporting compliance processes is still to be determined, with the intent to consult on the detail of such changes to both implemented calculation tools and supporting guidance in summer 2025.

3.3 Regulatory actions taken forward

Following review and consideration of responses to the recent consultation and focussing on items that may require modifications to the Building Regulations, it is the view of the Scottish Government that an outcome, up to and including that delivered through the voluntary Passivhaus Standard can be delivered.

The changes that are set out below are implemented via The Building (Procedure) (Scotland) Amendment Regulation 2024. Further information on the amending regulations is provided in the accompanying policy note. No related information on the implementation of these regulations is published at present. This will be confirmed following consultation in summer 2025 on revision of building performance targets, calculation methodologies and supporting compliance processes.

3.4 Amendment of the Building (Scotland) Regulations 2004

Questions 1 to 14 of the recent consultation set out and discussed the components of an equivalent standard alongside actions to improve the setting of energy performance and ventilation standards for new buildings that lead to a lower energy demand (reduced running costs) and a healthy indoor environment. The consultation did not set out the detail of the proposed new standards applicable to building design. Such matters will be set out in a second consultation scheduled for summer 2025.

In respect of how we set performance requirements, the Scottish Government is content that the current regulations and schedule of mandatory standards within The Building (Scotland) Regulations 2004 already provide the necessary legislative provisions to give effect to the final proposal for a proposed Domestic Building Environmental Standards (Scotland) Bill. The outcome sought being ‘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’.

Additionally, there was strong support in the responses to our recent consultation to amend standard 6.1 (energy demand) to recognise Passivhaus certification as an alternative means of compliance. This is one further useful change that we can make to support the standards, but it is not needed to give effect to Mr Rowley’s final proposal. It will be progressed as a separate change next autumn, once the second consultation in 2025 has set out full proposals for revision of performance targets and supporting processes.

3.5 Amendment of the Building (Procedure) (Scotland) Regulations 2004

Questions 15 to 25 of the recent consultation set out and discussed actions to improve assurance that the design intent for energy performance and ventilation standards for new buildings is achieved in practice. And considers how an evidence-led compliance process can enable reporting on this goal throughout the design and construction stages of a project.

There was broad agreement on the proposals presented in questions 15 to 25, in particular on elements defining how a potential “Guide to Compliance and Assurance for Very Low Energy Buildings” may look.

There is no current provision that sets out the broader actions and reporting expected by the party responsible for compliance (applicant/relevant person) to produce and supply evidence of the competence of process applied more generally to works. A means of introducing this is needed, together with a means of mandating the recording and issue of information for verification of compliance.

Changes that are necessary to legislation have been identified and these relate to building standards processes. In particular, the mandating of information needed to demonstrate to verifiers that compliance in both the design and the construction of buildings is being taken forward correctly. We can confirm that regulations amending The Building (Procedure) (Scotland) Regulations 2004 will be laid on 12 December 2024. These will introduce a requirement for developers to provide an “energy and environmental design statement” with building warrant applications and an “energy and environmental construction statement” with each completion certificate. These statements will describe how the design and construction of the building complies with paragraphs 3.13, 3.14, 3.28, 6.1 to 6.7, 6.10, 7.1 and 7.2 of schedule 5 of the Building (Scotland) Regulations 2004. These are the mandatory standards relevant to the delivery of energy and environmental performance.

The format and content of each document will be set out in guidance to be consulted on in 2025. This guidance will set out the expected action by the applicant/relevant person, directly through their project team, to demonstrate the means by which compliance with the relevant standards is assured at each stage of a project, from design, through to construction and commissioning of the finished works. It will also reiterate current reporting provisions sought in relation to the cited standards at both design and construction stages and enable the formalisation of an overall verification evidence list.

3.6 Delivery programme

The Scottish Government made clear that the date of implementation for the Passivhaus equivalent standard will be agreed following the summer 2024 consultation. The consultation proposed to mandate the new standard in 2028 with consensus among responses supporting this proposal.

As part of the laying of amendment regulations in December 2024 the Scottish Government will apply a coming into force date for 31 March 2028.