Extreme weather is becoming increasingly common. Malcolm Dowden and Anna-Claire Marks discuss how this will affect development
Climate change has long ceased to be a minority concern. It was a key agenda item at the G8 summit and is an essential factor to be taken into account when planning future land use and development. For design and professional teams, sustainability and climate resilience are moving inexorably towards the top of the priorities list. It is only a matter of time before issues arising from climate change find their way into the courts.
Models based upon UK 2002 Scenarios, the UK Climate Impacts Programme (UKCIP) report, and London’s warming: The impacts of climate change on London, produced by the London Climate Change Partnership, suggest that, by 2020, annual temperatures could increase by up to 1°C and, by the 2080s, by up to 6°C. In general, this will lead to hotter, drier summers and milder, wetter winters. However, these patterns are likely to be broken up by more extreme weather events, including an increase in the intensity of rainfall producing both winter and summer flash floods.
The stakes are particularly high for developers and investors in London and the south-east of England. The effects of climate change in these regions are likely to be especially pronounced because of their inherent vulnerability to rising sea levels, pressure on water resources and the urban heat island effect, which will be exacerbated by intensive land use and the large-scale development of areas such as the Thames Gateway.
Climate change will affect every home and business. Developers, investors and their professional advisers will need to address the effects at each stage – from buying land to completing the development and beyond. In its February 2005 consultation paper, Adapting to climate change, the Three Regions Climate Change Group (TRCCG) pulled no punches. It pointed out the opportunities that could flow from a positive and constructive approach to climate change, but it also set out in stark terms the risks that will attend wilful ignorance or failure to respond.
What are the risks?
● Costs: A failure to adapt to climate change could mean that a development will be too expensive to run, too uncomfortable to live or work in, and even uninsurable later in its life. This will have serious implications when owners attempt to sell or let the property.
● Legislation: Building regulations and standards will change. By failing to take voluntary measures now (anticipating future requirements), there is a risk that more expensive remedial measures might have to be taken at a later date (for example, on refurbishment) to ensure compliance as legislation comes into force.
● Reputation risks: An organisation’s brand could be harmed if a failure to address climate change were to threaten the sustainability of a building, development or land; for instance, because flooding or high temperatures would make the building unusable.
● Increased weather risks: Such risks are already increasing by 2-4% per year on household and property accounts as a result of changing weather patterns. Claims for storm and flood damage in the UK doubled to more than £6bn over the period 1998-2003, with the prospect of a further tripling by 2050: see A changing climate for insurance, published by the Association of British Insurers.
Legislative change is imminent. The government has until January 2006 to implement the EU Directive on the energy efficiency of buildings and, with it, changes to Part L of the Building Regulations: see EG 26 March, p212. Buildings produce around one-half of the UK’s greenhouse gas emissions, so the government considers that it is vital for buildings to be designed, built and used in the most energy-efficient manner if the target of a 60% cut in CO2 emissions by 2050 is to be met.
However, a question mark hangs over the policing of new environmental regulations. A council’s building control department must check building specifications as part of the planning process, but studies by the Buildings Research Establishment have found that 60% of new houses and 30% of commercial buildings fail to meet the existing standards of airtightness. Another study of 100 new houses found that one-half did not meet one or other aspect of the Part L standards, including loft insulation or boiler controls.
Continuing pressure
Private members’ bills are maintaining the pressure on the government. Mark Lazarowicz MP introduced the Climate Change and Sustainable Energy Bill on 22 June. This aims to reduce emissions of greenhouse gases, to alleviate fuel poverty, to promote microgeneration and to introduce a renewable heat obligation. It picks up many of the issues raised in the last session by Michael Meacher’s Climate Change Bill, which was dropped when the general election was called. Alan Whitehead MP will introduce the Management of Energy in Buildings Bill, which seeks to amend building regulations to ensure that new buildings contain renewable and sustainable energy devices to produce a minimum standard of energy generation. The bill also aims to simplify the planning regime for the installation of home-based energy-producing devices and to place an obligation upon the government to examine and report on the carbon-saving potential of domestic appliances that use off-peak electricity.
Private members’ bills rarely become law, but they can pressure a government into making its own provisions – in this case, with the added impetus of the January 2006 deadline.
Legislative change and hard rules tend to loom largest when assessing potential liability. However, businesses should not underestimate the increasing importance of corporate social responsibility (CSR) both as a reputational issue and as the possible basis for future legal liabilities. The US, for instance, is witnessing a shift from a “rules-bound” to a “values-based” approach to risk assessment: see www.climatelaw.org. Leaders in CSR are already incorporating social and environmental issues into their risk-assessment processes to ensure a defensible position in any future claims arising from CO2 emissions.
An enhanced duty of care?
The consultation paper issued by the TRCCG sets out a checklist of issues to be considered when planning a new development (see box opposite). Although aimed primarily at developers, architects, surveyors and engineers, all members of the professional team – including lawyers – should be familiar with the issues.
As the effects of climate change become ever more apparent, an ability to demonstrate that climate resilience measures were fully considered from the outset will provide an increasingly important defence to any claims that might subsequently be made in respect of the advice given. Where such measures were not built into the planning application or subsequent scheme, the developer and all members of the professional team should be equipped and ready to explain why not.
How should professionals react to these developments? It is clear that best practice is becoming more rigorously defined. The checklist requires detailed consideration both of the initial effect of a development and of its ability to withstand climate change over the lifetime of the building, which could be 50-70 years. The effects of climate change can now be regarded as being reasonably foreseeable and at every stage – from initial instruction, through the design and planning process to construction and beyond – it must be incumbent upon professional advisers to ensure that appropriate steps have been taken to address the points raised in the checklist.
When acting for subsequent buyers or prospective tenants, it will be necessary to ensure that full information is obtained in respect of the climate-proofing of the building. At one level, implementation of the Energy Efficiency Directive will make this process easier as a consistent methodology is devised and adopted and as the energy-efficiency rating of a building becomes a matter of public record. However, where a building is given a poor rating, or where its climate-change resilience is inadequate, attempts will no doubt be made to render the design team and other professional advisers liable. In those cases, the best defence would be to show what measures were considered and rejected, and upon what basis. For example, design teams and advisers may well find a defence in clear, contemporaneous records that show recommendations as to materials or site layout being overruled by clients on grounds of cost or upon the basis that the anticipated lifespan of the building will have expired by the time problems become apparent.
Disputes might also arise where planning or other necessary consents have been refused because the application failed to take account of key factors, such as those set out in the checklist. In those cases, it might reasonably be argued that the instruction – express or implied – to the design team and planning consultant was to produce an application that would pass muster as far as sustainability and climate resilience was concerned.
However, perhaps the most likely area for dispute and liability will be where energy-efficiency or climate-resilience measures prove to be mere “greenwashing” in an otherwise conventionally designed building.
Industry plaudits and positive publicity can be obtained by emphasising the green credentials of a new development (see boxopposite). However, should those claims subsequently prove to be overblown, the potential for longer-term reputational damage – and, of course, for litigation – must be taken seriously.
Malcolm Dowden is an associate and Anna-Claire Marks is a solicitor at Charles Russell LLP
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Building with green credentials |
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The Swiss Re Gherkin and Portcullis House are two UK buildings held to have green credentials. Portcullis House, an office and tourist venue, was meant to use just 90kW/m2 pa, but a National Audit Office report found that it uses 413 kW/m2 pa. It was suggested that this is due to the building’s change of use since it was designed. A lack of communication between designers and facilities management companies (FMCs) has been cited as a possible contributory factor in cases where a building’s environmental performance falls short. In future, FMCs might complain that designers do not provide adequate advice on how to run buildings. So, in order to comply with the changes to Part L of the Building Regulations, it might be necessary for design teams to be retained post-completion to ensure that the building is run at an optimum level. The Gherkin has an innovative stack-effect cooling system, which was meant to cool the building for almost six months of the year. As part of this, the windows were designed to open and close automatically. However, the opening mechanism on 300 windows was found to be faulty and they have had to be sealed. The system will now be out of use until a long-term solution can be found. Moreover, some tenants have installed partitions between the atriums and the offices. This provides additional office space, but stops the airflow and interrupts the stack effect. In future, the occupiers’ desire to maximise office space and the designer’s plans for cooling systems will need to be integrated. Under the strengthened Part L, buildings will have to be more airtight to prevent heat loss and to reduce energy requirements. More efficient lighting and heating systems are also required and walls will need better insulation in order to limit the need for cooling in summer and heating in winter. Some architects believe that this heralds the end of the “glass-box” style of building, since buildings with floor-to-ceiling glass walls warm up rapidly in summer and suffer massive heat loss in winter. Triple-glazing might make these buildings compliant, but this is thought to be prohibitively expensive. Some architects have risen to the challenge. Ken Shuttleworth’s practice MAKE has replaced much of the glass in its new designs with aluminium cladding, backed by a layer of insulation that deflects heat in summer and retains warmth in winter. It designed an office and warehouse complex, consisting of 40% glazing and 60% cladding. Thanks to this and other energy-saving measures, the building is rated as excellent under the Buildings Research Establishment environmental assessment method. MAKE has also designed the Kite, a 28-storey residential tower in Leeds, made of concrete and aluminium. It claims that this will use 25% of the energy required by a normal building. Shaped like a twisted triangle, the building uses wind turbines to generate electricity for the top third of the building and has an irregular pattern of windows, varying in shape from slits to rectangles and squares, to reduce the amount of glass while maintaining its aesthetic appearance. The shape and geometry of the new Alpine House at Kew Gardens, designed by Wilkinson Eyre Architects, encourage the environmental conditions necessary for alpine growth and provide a sustainable, energy-efficient growing environment. Two back-to-back twin arches create the height required to draw warm air out of the building and a fan-like shading system keeps summer temperatures at the required levels. Below ground, air is naturally cooled in chambers within a double concrete slab, recirculated around the perimeter of the house and onto the plants. The system is being considered for larger projects. Further afield, in Hyderabad, India, the Green Business Centre has been designed to be environmentally friendly. Energy consumption patterns in Indian buildings are traditionally high and the annual consumption in a conventional building is 300 kW/h per m2. In green buildings this can be reduced to less than half. The centre recycles its waste water, collects rainwater in a pond with a capacity of 8 lakh litres, reduces the use of portable water by 35%, consumes less energy than a conventional building and saves 88% on power consumption for lighting. Its key innovative feature are the double-glazed windows that allow natural light into the work space. Wind towers bring in fresh air, reducing the load on air-conditioners by 7-10%. Solar photovoltaic cells strapped to the roof meet 20% of the total energy requirement and 88% of the building comprises recycled material such as fly-ash and cement. Anna-Claire Marks is a solicitor at Charles Russell LLP |
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Checklist from Adapting to climate change |
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● Establish the Environment Agency (EA) flood-risk designations for the site and ensure that the design of the development accords with it. Visit www.environment-agency.gov.uk/subjects/flood/826674/829803 ● Check with the local planning authority to review strategic flood-risk assessments ● Undertake a flood-risk assessment and evaluate the risk over the design life of the development. Demonstrate that this is acceptable for the proposed use and that there will be no overall increase in risk ● Consult the ABI’s Strategic planning for flood risk in the growth areas – Insurance considerations on the viability of the development ● If the proposal falls within the London heat island, estimate the maximum daily heat output, that is, during a heatwave towards the end of the building’s design life, and ensure that this is acceptable ● Identify immediate neighbour effects as well as the cumulative ones, and the increased demand on services ● Ensure that the overall layout and massing of the development does not increase flood risk and, where possible, reduces the risk ● Minimise solar gain in summer and maximise natural ventilation ● Provide homes and other appropriate uses with a private outdoor space where possible ● Show that the structure of the development is suffciently strong or able to be strengthened if wind speeds increase owing to climate change or to avoid movement following expected future levels of subsidence and heave, and it is able to incorporate appropriate mechanical cooling and is of an appropriate thermal mass for the intended use and occupancy ● Demonstrate that the building has, or is capable of having installed, a cooling and ventilation system that will deliver comfortable temperatures (exceeding 28°C for less than 1% of the time and greater than 25°C for less than 5% of the time) for the expected climate throughout the design life of the development. Heat exchange/groundwater cooling should be designed in early, as opposed to traditional air-conditioning. For some types of building, in particular housing, natural cooling and ventilation should be used ● Ensure that arrangements for ventilation bring only clean, pollution-free air into the building and do not compromise noise levels or security ● Carry out a ground survey to determine the suitability of the site for sustainable drainage systems (SuDS). If the site is suitable, provide for SuDS or consider green roof systems to attenuate rainfall and/or contribute towards the cost of off-site SuDS ● Ensure, in consultation with the EA, that consideration is given to the implications of groundwater quality and that the requirements of the Groundwater Regulations 1998 are complied with in respect of infiltration techniques employed ● Provide multiple benefits, where possible, from SuDS, such as public amenity, wildlife improvements and water conservation, and link SuDS to larger-scale catchment-based flood management ● Show that the future maintenance requirements of SuDS have been considered, including the need, where necessary, for the removal of silt, which will be treated as a controlled waste, and that space requirements for this purpose have been allowed for ● Make sure that responsibility for maintaining SuDS is clear at the planning application stage ● Consider the proportion of surfaces that are permeable in car parks, amenity areas, pedestrian pavements, cycleways, bridleways, carriageways, swales and infiltration basins and permeable conveyance systems (swales and filter drains) ● Ensure that the drainage of carriageways, paths and other site features that might become routes for floodwater have been properly designed ● Minimise water use in buildings; consider the use of rainwater collection/reuse systems and the environmental effects (of water consumption) of products, materials and building methods ● Incorporate an appropriate range of public and private outdoor spaces in developments, with appropriate shade, vegetation and water features ● Ensure the design of surfaces takes account of more intense use, permeability, potential for causing dust and for soil erosion ● Choose long-lived vegetation (10 years +), taking account of future climate change ● Water features should have minimal net water use ● Provide a rainwater collection system/grey-water recycling for watering gardens and landscaped areas ● Arrange for waste storage that allows for separation and prevents excessive smell in hotter conditions |
