High-Rise project >> Finding a Way Forward > Opportunities and barriers >

Legislative drivers

The Energy Performance of Buildings Directive is the foremost legislative driver for improving energy efficiency in high-rise buildings at a European level. Requiring that national legislation transposing the Directive’s requirements is in force by 6th January 2006, it stipulates that “whenever a building with a total useful floor area of over 1000m2 undergoes major renovation, its energy performance [must be] upgraded to meet minimum requirements […]. These should be technically, functionally and economically feasible” . Even the lowest of high-rise buildings at five storeys high is likely to exceed 200m2 useful floor area per storey, bringing virtually all of the high-rise stock under the obligation to meet minimum energy performance requirements. These requirements are defined by individual member states, can pertain to either the building as a whole or the renovated system and components, and must be reviewed every five years to reflect technical progress. Furthermore, it is precisely when a building undergoes major renovation that improvement of its energy efficiency is most cost-effective to undertake.

The proposed Energy End-use Efficiency and Energy Services Directive (ESD) stipulates that Member States must remove or amend “national legislation and regulations that impede or restrict the use of financial instruments for energy savings in the market for energy services” – this would directly address some of the financial barriers identified. Furthermore, the ESD suggests the Member States establish funds, such as “grants, loans, financial guarantees and/or other types of financing” that “subsidize the delivery of energy efficiency programmes and other energy efficiency measures and promote the development of a market for energy services, including the promotion of energy auditing, financial instruments for energy savings and, where appropriate, improved metering and informative billing” . The establishment of procedures for the latter – “improved metering and informative billing” – is a must. Stipulations like these can provide a real opportunity to improve (or create in the first place) the link between energy consumption and energy expenditure; especially important in the high-rise context here is the requirement to ensure provision of individual metering for each end-user (i.e. dwelling).

It is clear that there is potential for the EPBD and the ESD to have a synergetic effect on (the market for) energy efficiency in buildings. With the ESD progressing steadily through the legislative process, it will prove a very important opportunity to conduct research into these legislative synergies at a European level.

Condominium law

The legal framework for condominiums or tenement groups in each country can prove a strong determinant of residential investment. The presence of a formal requirement for the inhabitants or owners of dwellings in a high-rise block to exist as a legally defined entity and the way in which this entity’s rights and responsibilities are defined can create critical opportunities for and barriers to residential (energy efficiency) investment. Figure 1 provides some indication of the legal frameworks present in Europe, and can thus grant insight into where the most relevant aspect of condominiums – collective responsibility for a high-rise block or estate – is prevalent.

Figure 1: Prevalence of condominium law (VROM commissioned survey)

It appears as if the incidence of the most extensive legal frameworks is highest in EU15 countries, and one important explanation for this may lie in the higher degree of high-rise private ownership in EU10 and AS3 countries. The most significant barrier appears to be in those four EU10 countries that neither have a law on condominiums generally, nor specifically in cases of mixed ownership. Nevertheless, not having a legal framework for condominiums, while such a framework could certainly provide a good basis for collective action, does not automatically mean that it is impossible to facilitate residential (energy efficiency) refurbishment. Residents of high-rise buildings may draw up their own condominium contracts in the absence of a legal requirement to do so, or may even come to informal agreement. Still, because some residents would always be able to ‘free-ride’ on other residents’ energy efficiency investments, so creating a disincentive to invest, there is a solid argument in favour of using compulsion to ensure collective responsibility.

Condominium laws may carry their own barriers; one of the most serious may be a resident unanimity requirement for proceeding with any proposed refurbishments. Majority-voting may provide a more constructive way forward in averting worst-case situations in which a single resident may have the power to stop refurbishments everyone else can agree upon. Compulsion to save for refurbishment, using condominium law, is another option; the approach may be unpopular but is likely to be effective. In Denmark, for instance, condominiums must maintain a fund for building refurbishment that contains at least four per cent of the building’s value. Conceivably, opportunities exist in combining legal requirements such as this with financial or fiscal incentives linked to energy certification achieved. This may not only make measures such as this more effective, but can also act to overcome political difficulties of introducing them.

Other law

Other legal frameworks have some bearing on energy efficiency investment in high-rise buildings, albeit not as directly as the issues discussed above. Planning law and powers and building control authority, often devolved to a local level, will have some jurisdiction over whether planned refurbishments are given a green light. Inclusion of energy efficiency in the refurbishment of a building, which in the case of high-rise may often entail exterior insulation and cladding, can change the building’s appearance and character. Whether this is for the better or worse is usually a question of taste, what matters is whether planning rules act as an opportunity or barrier by prioritising conservation of character or conservation of energy. The high-rise blocks of the 1960s and 70s are not exempt from such protection. Trellick Tower in West London was granted the second-highest protected status for English buildings in 1998 because it is a historically significant example of Brutalist architecture.

Figure 2: Trellick Tower, West London by Erno Goldfinger (completed 1972)

Buildings with this status cannot have refurbishments implemented which affect their character, though in the case of buildings with a lower protected status, refurbishment plans are negotiable in many jurisdictions where planning officials usually have some discretionary powers. The conclusions to be drawn are to ensure the incidence of conflicts between energy conservation and conservation generally stays low, that planning officials are provided with clear guidance to this effect, and that developers involve planning officials in the refurbishment process as early as possible to enable a constructive relationship. In the context of planning law as it applies to non-protected buildings, clear guidance must be available to planning officials on building fitness decision criteria – i.e. whether demolition or refurbishment should be the first choice. A barrier to cost-effective refurbishment may exist where a preference for demolition has been enshrined in planning law. Similarly a barrier exists when monitoring and enforcement of compliance with building regulations is poor. Building control agencies and officials need to independent, consistent, and be able to communicate credible threats for non-compliance.

Many of the impasses of planning law and building regulations can be overcome or avoided if the opportunity is taken to fully consult residents and other stakeholders, so involving them in decisions on refurbishment and compliance. This is to an extent implicit in the condominium context, but private tenants, not just owners, need to be equally involved in decisions regarding their home. The fact that there rarely is a legal requirement to do so can prove a barrier to residential energy efficiency investment. With publicly owned buildings however, consultation with stakeholders on refurbishment should be seen as a legal requirement because of the Århus Convention, which has given rise to European Directive 2003/35/EC. This Directive provides the right to public participation in environmental impact assessments amongst other processes, and requires Member States to transpose it by summer 2005.