Making developers liable for a building’s performance would benefit both customer and industry

Matthew Rhodes

The government’s recent announcements on the tightening of Part L and proposals for Allowable Solutions are a disaster for the UK building sector.

My basis for saying this is not because of the limited and delayed impact on carbon emissions - the headline objective of the changes  - although the timidity in that area is bad enough; it is more because both the nature of the changes proposed and the manner in which they have been announced are deeply damaging to the long-term health of the industry. It’s time to think differently about how we regulate energy in buildings in the UK.

Looking beneath the technicalities for a moment, the fundamental realities of the recent announcements are:

  1. We’ve all endured months of uncertainty about when and to what degree regulations might change
  2. The proposals fail to tackle the widely acknowledged performance gap, construction quality, and compliance issues that arise from a system that focuses on merely ticking boxes at the design stage
  3. The consultation on Allowable Solutions introduces a far too easy get-out clause permitting developers to pay into a fund for investment in projects of “national importance” when they can’t achieve regulated targets cheaply onsite.

The consequences are that investments have been delayed; quality and skills in construction practice continue to be under-valued; and policies continue to lose connection with reality. Plus, there is little or no incentive for innovation or continuous improvement in the industry. These consequences are not about whether energy targets are set 6% or 25% lower, or carbon prices are £30 or £90 a tonne; they are caused by the structure of the system itself.

A better - if radical - way to regulate carbon emissions from buildings would be to abolish Part L altogether, replacing it with a simple requirement to label all new buildings with their anticipated energy performance and running cost per square metre per year, and make the developer legally liable to the occupant if these targets aren’t met (under defined operating conditions and occupancy). In other words, I can sue my builder for damages if performance in use doesn’t match his promise.

The effect of this would be that the construction market might start to operate like any other market, with customer needs driving competition and innovation. Building buyers could start making properly informed decisions, and the focus of the industry would shift to quality and innovation in delivery rather than looking for ways to weaken regulations or minimise the costs of compliance. The costs of policy development and lobbying would also fall significantly – in short, the construction industry could start focusing on customers and building buildings rather than managing Whitehall.

Matthew Rhodes is managing director of Encraft