Planning law and heat networks – navigating the interface (Part 3 of 3)

Written by Lucy Thomas, Louise Mansfield, Carrie Davies, and Joseph Halawin.

The regulatory landscape for heat networks is evolving. In previous articles we considered aspects of the planning regime that will apply to heat networks being delivered in zones and the role of the local planning authority in heat network zoning.

Having concluded that there continue to be some potential gaps in the regulatory framework that may prevent the sector delivering on net zero targets, in this article we consider other tools at the disposal of Local Authorities to support delivery of heat networks.

Can recent changes to the Building Regulations assist in requiring buildings to connect to a heat network?

The Building Regulations 2010 (the “Building Regulations”) require that if “Building Work” is being carried out, building control approval must be obtained and the relevant requirements set out in Schedule 1 of the Building Regulation must be met for that work. 

Building Work does not only mean building something new or extensions - it also includes the provision or extension of a “controlled service or fitting” which is in, or in connection with, a building.

A “controlled service or fitting” is one in relation to which Parts G, H, J, L or P of Schedule 1 impose a requirement. Both Parts G and L are potentially relevant to heat networks. Part G includes requirements in respect of hot water, and Part L includes requirements in respect of energy efficiency. 

Part L is particularly relevant in that it sets out minimum energy efficiency standards that all Building Work must adhere to. It states:

L1. Reasonable provision shall be made for the conservation of fuel and power in buildings by:

1. 1. Limiting heat gains and losses:
      
      1. From pipes, ducts and vessels used for space heating, space cooling and hot water services;
   2. Providing fixed building services [which includes fixed systems for heating and hot water] which:
      
      1. Are energy efficient to a reasonable standard;
      2. Have effective controls; and 
      3. Are commissioned and tested by adjusting as necessary to ensure they use no more fuel and power than is reasonable in the circumstances

Part L applies to new buildings, and it also applies to existing buildings. Existing buildings do not necessarily have to be brought up to current standards, but if they are going through Building Work (for example, installing a new heating or hot water system),that Building Work will have to comply with the regulations.

Therefore, while Part L does not mandate that a building must connect to a heat network, it does set requirements in respect of energy efficiency that could arguably be best achieved in certain circumstances by either connecting or providing for connection when a heat network is available. Part L1(b)(i), the requirement to be energy efficient to a reasonable standard, is the requirement that may make connecting to a heat network attractive for buildings that are required to meet the energy efficiency standards set in the Building Regulations. 

The guidance to Part L of the Building Regulations has been updated recently to support the government’s aim that new homes produce 31% fewer carbon emissions, and new non-domestic buildings produce 27% fewer, when compared to 2013 levels and both types of buildings must improve overall energy efficiency. 

Building Regulations Guidance L1A – New Buildings

This provides that: new dwellings must achieve prescribed standards of energy efficiency and limits on carbon emissions through the performance of the building fabric, efficient fixed building services [which include heating and hot water], low-energy lighting and appropriate controls. The guidance also requires the building to be properly commissioned and for information to be provided to occupants on the operation of installed systems.

Building Regulations Guidance L2A - Existing Buildings

This guidance provides that relevant works for existing dwellings must minimise energy demand through the building and to install energy efficient fixed building services, including heating, cooling, ventilation and hot water systems. Compliance is demonstrated through performance calculations that assess both energy use and carbon emissions, with systems required to be effectively controlled, tested and commissioned. 

Guidance L2A also relates to renovation and / or modification of existing non-residential buildings. The requirements apply if the building has a floor area greater than 1,000 meters squared, and there is an extension proposed that is more than 100 meters and more than 25% of the total building. additional energy-efficiency improvements to the existing building may be required alongside the extension. The purpose is to ensure that major works provide an opportunity to improve the overall energy performance of the building as a whole, rather than only the new extension meeting modern standards

Importantly the requirements in respect of existing non-residential buildings also apply where new fixed building services, (which includes heating and hot water), are being installed, or where there is an increase to the capacity of those systems.

The guidance requires heating and hot water systems to achieve minimum energy efficiency standards, with Section 6 of both L1A and L2A setting out the performance criteria for a range of technologies including heat networks. The policy approach therefore appears to be that as efficiency standards for conventional systems such as gas boilers become increasingly demanding, developers and building owners may find that low-carbon alternatives such as heat networks are a more attractive route to compliance with the Building Regulations. 

In addition, for existing dwellings, where heating and hot water systems are being replaced there is now a recommendation in the guidance, (though unfortunately currently only in the guidance for dwellings), that facilitating future connections to a local district heat network should be considered. 

In summary, the recently updated guidance to Part L of the Building Regulations does not specifically require buildings to connect to a heat network, but they do potentially add to the overall toolkit available for encouraging connections. 

What can a local planning authority do to support delivery of heat networks in their area?

Even though legislation does not expressly require them to do so, many local planning authorities are likely to want to encourage delivery of heat networks, to support the Local Authority of which they are part, to deliver against climate emergency and net zero metrics. 

Absent a formal legal framework mandating consultation this may be achieved by early engagement and building relationships with Zone Coordination Bodies (“ZCBs”) (especially if these are not hosted within the same Local Authority in which the planning function resides) including conversations that start before proposed zones are published for formal consultation, meaning that planning authorities have a greater opportunity to shape discussions around proposed boundaries. Sharing knowledge and information will mean that ZCBs gain access to detailed local planning knowledge and the planning authority will gain a better understanding of how zoning proposals are developing so before formal consultation about zones begins, many of the obvious issues have been resolved.

Planning authorities are also uniquely placed to embed heat networks within the wider planning framework through the Local Plan process which matches the direction of national planning policy. This could be achieved through identifying suitable locations for heat network infrastructure as part of strategic site allocations and through development management policies setting out what applicants should consider when designing energy centres or pipe networks. Policies could encourage developers of major schemes to demonstrate how their proposals will connect to existing or future district heating infrastructure. There is also nothing preventing planning authorities from consulting ZCBs when preparing or reviewing a Local Plan. 

Planning authorities could also involve ZCBs in the development management process, consulting them on planning applications for significant developments within designated zones where the ZCB’s technical input may assist the planning decision.

Planning authorities can make use of the tools at their disposal (i.e. planning conditions and section 106 agreements) within the established legal framework. This could help either secure actual connections to heat networks or, where that is not yet possible, ensure that developments are designed to be heat network ready.

Are there any other planning-related tools available to Local Authorities to facilitate development of heat networks? 

Local Authorities could consider using a Local Development Order (“LDO”). These are made under the Town and Country Planning Act 1990. An LDO grants planning permission for specified forms of development within a defined geographical area, subject to whatever conditions the LDO itself imposes. 

LDOs replace the need for heat network developers to submit repeated planning applications for the same types of infrastructure, with a mechanism whereby if the heat network development falls within a specified geographical area, and it meets the conditions specified in the LDO, then planning permission has already been granted. LDOs offer three significant advantages:

The first advantage of an LDO is efficiency. Heat networks are rarely delivered all at once, they are usually developed in phases over many years. Without an LDO, each phase may require separate planning applications. That inevitably creates additional cost and delay for the heat network developer and places additional pressure on already stretched planning departments.

The second advantage of an LDO is investor confidence. Heat networks require substantial upfront capital investment. Uncertainty around planning timescales inevitably leads to uncertainty around programme, cost and delivery. The LDO removes a significant element of that uncertainty.

The third advantage is environmental assessment. Rather than assessing the same environmental issues repeatedly for every individual planning application, many of those matters can be considered strategically when the LDO is prepared. This means that the planning authority can assess the likely environmental effects across the proposed route of the network as a whole.

Leeds City Council’s District Heating Network Local Development Order is a good example of this in practice. The Leeds Heat Network LDO grants planning permission across defined parts of the city for infrastructure including:

• underground heat pipes;
• cables and wires;
• heat exchange equipment;
• street furniture;
• signage; and
• ancillary engineering works.

Importantly, however, it is not an unrestricted permission. The LDO contains detailed conditions and exclusions including in respect of larger above-ground structures, energy generation plant, works affecting listed buildings, scheduled monuments and certain environmentally sensitive locations.

The Leeds LDO exemplifies the way this mechanism can provide a careful balance between the need to facilitate infrastructure delivery with the need to protect important environmental and heritage assets while  supporting delivery of a city-wide district heating network in furtherance of the Council's wider climate ambitions.

The introduction of zoning arguably makes LDOs even more attractive. Once a zone has been designated, the strategic question of where heat networks should be delivered has largely been answered. An LDO can remove one significant source of delay by granting planning permission in advance for routine elements of network infrastructure and can simplify the planning process for constructing that infrastructure.

We therefore expect to see increasing numbers of planning authorities looking to the examples already established by Leeds, Southwark and Bristol, each of which have used LDOs to positive effect in delivering heat networks. Indeed, for authorities that are serious about accelerating delivery of district heating, LDOs may well become one of the most practical planning tools available.

Conclusion

The intersection of heat network zoning, and planning mean that there is a lot to digest and consider. Local Authorities are likely to want to consider how they can best make use of the range of tools available to them across the different areas of national regulation and local policy in order to create the levels of demand assurance needed to ensure that heat network zones succeed. 

However, overall, the direction of travel is positive – there are tools available to support the ambitious targets for roll-out of heat networks and while those tools may be in various places, a regulatory framework is being built that is designed to give investors, developers, operators, and consumers the confidence they need.

If you would like to discuss any of the issues raised in this article please contact  Lucy Thomas, Louise Mansfield, or Carrie Davies, who would be happy to discuss.

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