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The Merton Rule and the need for local authorities to push the envelope

The Merton Rule and the need for local authorities to push the envelope

Cover image: M3 Solutions.

APSE is a local authority-owned association that provides services across local government enabling the delivery of effective services whilst promoting the sector. APSE Energy is the part of the organisation that focuses on clean energy and low carbon projects.

In terms of consultancy work, most of the focus lately has been on local authorities building their own renewable energy capacity but it should not be forgotten that local government has important regulatory powers too, for example linked to planning and business rates.

On the planning front, the Merton Rule is an important tool for local authorities to raise standards of building within their areas. Recently, the Renewable Energy Association (REA) expressed concern that such was the confusion over whether the Merton Rule still existed – let alone what it covered – that it was causing local authorities to err on the side of caution and not require higher building standards in their local plans.

APSE Energy agreed to work with the REA to try and unravel the complexities surrounding the Merton Rule (wholly created by the government of course) and to reinvigorate its purpose and success in introducing clean energy and low carbon into the planning process.

The result of this work is a detailed report that has just been published jointly by APSE Energy and the REA simply entitled The Merton Rule. This explains the current situation with the Merton Rule and also provides guidance on how more authorities can be encouraged to adopt its use.

This report explains what the Merton Rule is for, as awareness is clearly an issue, in that many authorities are unaware the provisions even exist! Having got over that hurdle, it then seeks to clear the fog of uncertainty about government proclamations about abolition of the rule and/or its amendment. This latter issue has taken a detailed legal analysis which has illustrated the complexity of the current position.

Starting with the background, the Merton Rule was first established by Merton London Borough Council in 2003 and was subsequently adopted by scores of other local authorities. It required new commercial buildings over 1000 square metres to generate at least 10% of their energy needs from on-site renewable energy equipment and to achieve energy efficiency standards higher than Building Regulations.

It was subsequently extended to domestic dwellings and updated via the Planning and Energy Act 2008.  Eric Pickles, when Secretary of State for Communities and Local Government, put the cat amongst the pigeons in 2014 when he announced that it was to be abolished in a drive to cut bureaucracy.

Many authorities now think that it has gone and so less are requiring better standards of energy efficiency and on site renewables. This is a problem at a time when building standards desperately need to improve.

But to cut to the chase:

  • The Merton rule was NOT abolished, despite Eric Pickles saying that he was going to;
  • This means that local authorities can still require a percentage of energy used on the site to be from renewable sources;
  • But the rule also covers energy efficiency and this has proved more controversial. The government announced planned changes via the Deregulation Act 2015 to the effect that energy efficiency standards above Building Regulations for domestic dwellings could not be imposed at local level.
  • But the legislation that now contains the rule (the Planning and Energy Act 2008) has NOT yet been amended to introduce these new constraints on energy efficiency.
  • And they did not apply to non-domestic buildings in any event.
  • Meaning that the FULL Merton Rule powers are still available as they always were.

The full analysis is in the APSE Energy publication which is available from APSE Energy by contacting pbrennan@apse.org.uk.

The final piece of the jigsaw is for authorities such as Merton LBC and others, where the Merton Rule has been very successful, to publicise their evidence base for what can be achieved. These things together will then encourage more authorities to revisit this important area of planning practice.

Our advice is for local authorities to push the envelope on this and require both good levels of renewable energy and ever increasing standards of energy efficiency from all buildings. They can do this by including such provisions in their draft local plans and being prepared to argue them out with planning inspectors. Once adopted, they are then enforceable at local level.

Now that the top down provisions of the zero carbon homes and buildings policy have gone, it is up to local government to achieve these aims from a bottom up, localist approach. There is no excuse for poor building in this day and age and it is imperative that lower carbon, better performing buildings are created. If not, local authorities will be picking up the pieces in various ways for many years to come.