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technical & practice - It aims to promote a sustainable future, but recent rushed legislation could make architects even more insecure

The Sustainable and Secure Buildings Act 2004 became law last month after swift and uncontroversial progress through parliament. What does this mean for architects and other design professionals? The short answer is:

nothing - yet. In keeping with the current trend in legislation, this act has little direct effect in itself but is enabling legislation, increasing the powers of the secretary of state so that he or she can make changes to building regulations without referring them back to parliament. Despite its eye-catching name, the act amends the Building Act 1984, under which the current Building Regulations are made.

The Building Regulations and associated Approved Documents can now be modified to impact significantly on the work of designers and constructors.

After all, the regulations impose only broad functional requirements and the approved documents are simply guidance on acceptable methods to meet those requirements. There is no legal obligation to follow any method given in the Approved Documents provided you can satisfy building control that the requirements of the regulations have been met another way.

The act has a strong environmental direction in terms of compliance and assists in the implementation of the European Directive on the Energy Performance of Buildings in England.

Although no Building Regulations have yet been made under these new powers, this article explains key provisions in the act. Readers should bear in mind, however, that the likely consequences are speculative.

Facilitating sustainability Sustainability has been on the government's agenda for some time. The act provides the secretary of state with powers to make Building Regulations that facilitate sustainable development and make provision in respect of 'recycling facilities (including facilities for composting)'.

The legislation does not define the term 'sustainability' or 'sustainable development' for use in the act. These buzzwords could therefore be broadly interpreted under any regulation. A cynic might suggest that this omission was deliberate, and that it would ensure that the government has the widest possible powers to make regulations in this area in the future.

This aspect of the act was driven by the World Wide Fund for Nature and its 'One Million Sustainable Homes' campaign. It recommends that all new homes should meet the BRE Ecohomes 'Very Good' standard and has recommended fiscal incentives for existing owners and occupiers to encourage them to meet this requirement. A quick look at the specification raises a number of issues that might now be addressed under the Building Regulations, including: CO 2 emissions;

reducing ozone-depleting substances;

reduction in the use of water, and water and waste recycling; and the use of sustainable or reused timber.

In the short term, therefore, Building Regulations might start by focusing on materials (types and source) and disposal of waste in a more targeted fashion than at present.

Security basics Requirements can also be imposed for 'furthering the prevention or detection of crime', but only in relation to new buildings. Regulations under this power might at first focus on basic security in terms of locks (on windows and doors), window construction and the design of property to minimise crime in the residential sector.

There have been no indications of the type of regulations that might be considered for commercial property, schools or other community buildings, but it seems plausible to imagine that CCTV and access control systems might be required. The Home Office will be driving regulations in this area immediately to assist the government in its 'war' against crime and terrorism.

The Act's security provision has been stimulated by several new housing developments where the windows were designed badly and window panes could be easily removed from the outside of the property. After the problem was discovered on one development, building control and the police found they had no powers to prevent further installation of this type of window on other properties.

Retrospective regulations Crucially, retrospective regulations can be made to cover buildings erected before the rules came into force. This includes requirements made for all the main provisions of the act (excepting only the new area of security).

The annual percentage of new buildings as a total of the country's building stock is in the region of 1-3 per cent. It has been acknowledged that unless the regulations are applied to existing building stock as well as new, their impact will be minimal and it could take up to a century to develop their full effect. The impact of this provision could be huge, but the requirements for sustainable development, conservation of fuel and power, use of water and so on can now be made to apply to existing properties.

The regulation can also be applied to existing buildings in relation to demolition and emissions.

Continuing requirements Regulations can be made that impose continuing requirements on owners and occupiers of buildings in relation to two key areas: use of fuel or power;

and a contribution to, or effects on, smoke, gas, vapour or fume emissions.

This is clearly aimed at meeting targets for cutting CO 2 emissions. Furthermore, there is provision to make regulations requiring compliance in these energy-related areas whenever the building changes occupancy.

This is a substantial change to the current requirements and it is clear that this is intended to tie in with the home-seller's pack and the building 'MOT' from the European Directive on the Energy Performance of Buildings. This has the potential to be a substantial burden to society, particularly for low-income households, which might not be able to afford to maintain their homes to the current requirements. Demands could range from improving insulation to installing energy-efficient boilers, making regular boiler checks, checking energy ratings and making costly upgrades to windows and glazing.

Compliance testers Regulations might also be made to require an appointed person to oversee compliance with Building Regulations in relation to any work. That person would be of a prescribed class, appointed by a person determined in accordance with the regulations. It has been suggested that this person would have to be in possession of an honours degree or even a chartered member of a suitable institution. However, it is doubtful whether a sufficient number of qualified people could be found.

It could be a role for a specialist building-control expert along the lines of the planning supervisor, but at this stage this is pure speculation. This part of the act might have little impact on designers, save for requiring a member of the design team to be constantly focusing attention on compliance with the Building Regulations, thus causing a drain on project resources.

Demolition demands The act provides that Building Regulations apply to the demolition of buildings as well as construction.

Probably conceived in terms of waste disposal and recycling of materials, this could force contractors to reuse waste that might not be ideal for the task, with any costs passed back to the client.

Historic buildings A loosely drafted clause in the act states that the secretary of state shall have regard to preserving the character of protected buildings that are of special historical or architectural interest.

This was covered previously within the Approved Documents, so is simply a formalisation of what already exists.

It does not mean that listed buildings will have an automatic right of exemption from Building Regulations, but it allows flexibility in each case.

Fewer exemptions The main exemptions from Building Regulations have been removed for educational buildings, statutory undertakers, the aviation authority or those with a licence under the Transport Act 2000. Only Crown buildings now have any exemption from Building Regulations.

Self-certification There is a consensus within the Building Regulations 'community' of a move towards greater self-certification (AJ 14.10.04). Self-certification refers to the use of approved installers or providers, accredited to provide the products and services without independent checking. It should make little difference whether an area is checked by building control or approved inspectors, or is self-certified.

As I have already noted, most of the above provisions will have no effect until regulations are made. Regulations can only be made after a process of public consultation - this would normally take at least two years, but could be pushed through faster in some areas.

Too few architects have thought it necessary to submit comments to the new Approved Document Part L: 2005 and Part F: 2005 consultations, which have just closed for discussion.

But given that some of the forthcoming changes are fairly draconian, and given that the Approved Documents are now under constant review, it would be advisable in future for us all to keep our eyes on the regs and to speak up when we have the chance.

Gina Brill is a legal engineer at Buro Happold. Telephone: 020 7927 9700

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