Tenements Short Life Working Group – energy efficiency and zero emissions heating: final report

4. Key Themes

Throughout the meetings held, the following key themes and challenges emerged. Discussion and consideration of these issues shaped the final conclusions made by the Short Life Working Group. These themes have been summarised and included below for awareness of the Scottish Government.

4.1 Information, Data and Evidence

There is a lack of robust data on tenements in Scotland, particularly regarding their state of repair. Despite the fact that a House Condition Survey is undertaken regularly, the level of detail required on the physical condition of the tenemental stock is currently not available. A greater evidence base providing information on what can and cannot be achieved in practice – both in relation to improving building fabric (including improving energy efficiency) and installing zero direct emissions heating systems - is required.

4.2 State of Repair

The repair and maintenance of these buildings must come first in the order of importance as there is little merit in installing additional energy efficiency measures until the building is in a good state of repair. In order to maximise benefits to occupants, ameliorate fuel poverty, and to reach demand reduction targets, existing fossil fuel heating systems should only be replaced by zero direct emissions systems after appropriate property repair and energy efficiency measures are in place. The order of priority must be: repair > maintenance > energy efficiency > zero direct emissions heat.

4.3 Ownership and Responsibility

Property which is individually owned versus that which is commonly owned in, and around, a tenement is set out in the title deeds of each dwelling. Should there be contradictions or gaps in the deeds, responsibility defaults to those set out in the Tenements (Scotland) Act 2004. Despite this, there is often considerable confusion among owners about what is individually owned and what is commonly owned. Action is required to give owners clarity and make them better aware of their rights and responsibilities.

4.4 The Tenement Management Scheme

Under the Tenement (Scotland) Act 2004 works to install communal zero emissions heating systems (and potentially individual systems should communal grounds be required for siting), and certain communal energy efficiency works which are not deemed "maintenance", are considered improvements to the building and therefore require unanimous approval from owners.

Even decisions which require only majority approval under the Tenement Management Scheme still face the significant obstacle of owners who cannot or will not pay for works. While local authorities can assist through payment of the 'missing share' this requires owners to make a case to the local authority and for the authority then to take on that debt which it is often reluctant to do. It is also only likely to be considered by a local authority in situations where it owns at least one flat in a block and possibly only then when works are to repair, rather than improve. Enforcement relies upon those owners who are in agreement initiating and pursuing legal action, which in practice also rarely occurs.

4.5 Scottish Law Commission Law Reform Project

The Scottish Law Commission (SLC) are considering a law reform project on the establishment of compulsory owners' associations (COAs)^[3]. This work could prove significant in facilitating energy efficiency and zero direct emissions heat works, not least through commissioning and paying for building surveys and serving as a legal entity to hold funds.

The work being undertaken by the SLC is not a "silver bullet", however, and will not solve every problem. While owners' associations may be mandated they could still vote against undertaking works and some form of enforcement mechanism would still be needed. Whether improvements to whole blocks of flats would be enforceable without consideration and wider reform of title conditions is unclear.

For COAs to effectively facilitate common works, various other work streams must also align to underpin this, including determining how tenement buildings would be assessed, how building reserve funds may operate, what guidance and support will be available from government, and what other finance mechanisms will be available to owners, both individually and collectively.

4.6 Encouraging Common Works

Building owners working cooperatively to undertake necessary works is the overriding issue we face and so facilitating this should be the priority. As owners are unlikely to be experts in the areas in which we are asking them to act they will require guidance and support. This issue is compounded by the fact that many tenements are not factored and so lack the professional building management that could help facilitate works.

While the SLC undertakes its review project, owners need to be encouraged and supported to work together to improve the energy efficiency of their buildings overall. The provision of guidance on, active promotion of, and support for owners' associations, buildings inspections and reserve funds prior to any legislation that would mandate any or all of these would assist this ambition.

4.7 Affordability and Cost

The issue of affordability is paramount. Making support available to owners to encourage and incentivise them to go further than just undertaking the minimum required repairs will be key.

Acknowledgement is needed, however, that certain energy efficiency measures may never be cost effective in terms of payback times for owners. Some types of interventions might be necessary in terms of addressing the climate crisis, but those installing these measures may never recover the additional costs from energy efficiency savings alone. These measures will require additional support.

4.8 Use of Archetypes in Regulation

Any regulatory approach which looks to address tenements through splitting buildings into archetypes and construction types will inherently contain both merits and drawbacks.

Regulating tenements is unquestionably a complex area and so splitting these buildings into subsets does provide a welcome level of simplicity. The usefulness of archetypes, however, will depend on what they are being used for, with the greatest value likely to be in highlighting issues or challenges presented by certain types of building. Variations in site, construction materials, fuel source availability, ownership and other factors will mean that costs and ability to upgrade can vary greatly even within the same archetype.

4.9 Assessment and Standards

There is a need to reform the EPC assessment process for tenements to represent their energy efficiency performance and determine their potential for improvement more accurately. It is counterproductive that some removable measures which can reduce heat loss, including shutters, and thick curtains, are not currently considered.

Providing owners with a fairly simple menu of measures that could be applied in their individual dwelling could prove an appealing route to meet future standards as progress has been hampered in the past by complexity. Adequate consideration, however, would be required to ensure materials forming the basis of measures were appropriate and their interaction with the existing building fabric was of benefit overall.

Developing a "whole building assessment" for both energy efficiency and zero direct emissions heat may be required to understand what measures are necessary across a whole tenement. The scope of such an assessment would need to be carefully considered to decide what it would need to include – the point of importance being that it provides owners with the knowledge and information they need.

4.10 Skills

It is vital that when looking at regulating for energy efficiency and zero direct emissions heat, the Scottish Government takes action to ensure there are sufficient numbers of appropriately trained architects, surveyors and tradespeople available within the industry to undertake the works that would be required, preferably with local knowledge and specialist expertise.

4.11 Enforcement

Compulsion is not necessarily the best way to get owners to undertake works and may be unpopular. It is likely, however, that compulsion will be required in some cases. What any enforcement measures will look like and where responsibility for imposing them will lie are important considerations. If this responsibility falls on local authorities they will require adequate and specific funding and resources to address the challenges this may bring.