Threat to Merton Rule

I have just read an appeal to the Government from the Sustainable Energy Partnership (which is supported by the Green party) re the Merton Rule - click on 'Label' below for info and a copy of my own letter to Ministers - plus see how this impacted on Stroud District Councils plans which have nevertheless gone ahead at 10% but perhaps could have been higher.

Photo: Climate Change march

Here is some of what the Sustainable Energy Partnership (SEP) wrote in their excellent document - I have included large chunks as I can't find it online yet and feel that what they have to say is of huge importance:

The new Government policy, as it is currently drafted, will remove the Merton Rule. This appears to have happened because of pressure on the department of Communities and Local Government (CLG) by the large housebuilders, who had a history of wanting to minimise local influence over their activities through the planning system. There is no evidence of the Merton Rule holding up new developments or even significantly eating into developers' profits. Only recently the government was asking authorities why they weren’t implementing the Merton Rule.

The removal of the Merton Rule would have serious consequences for the microgeneration sector, which now relies on the Rule for most of its orders. It also undermines Government plans for zero carbon homes by 2016. If the Merton Rule is effectively abolished, the microgeneration sector may not develop capacity needed to deliver the right kit to the right price. In the proposed replacement for Merton Rule is put in place by CLG, stretched planning authorities would be left to fight for renewables on a site-by-site basis against well-resourced developers. The developers would be backed by the CLG inspectors, who will be told by CLG that development comes before the environment.

It could also be that removal of the Merton Rule is illegal, for reasons set out in this document. The Sustainable Energy Partnership appeals to the government to change the wording of the PPS before it is finally published. Please keep the Merton Rule.

The threat to the Merton Rule from the draft PPS

Recently CLG civil servants held a meeting of invited stakeholders as a “sounding board” to comment on the most recent draft of the PPS on Climate Change. The most significant change to the PPS draft since the public consultation earlier in the year was the removal of the Merton Rule as currently defined and implemented - as a council-wide policy. Instead, the draft limited any council requirements to specific sites, flagged up in a high-level Local Development Document, with site-specific justification and an estimate of extra costs to any developer.

Removing the ability of councils to set a viable policy borough-wide in their planning documents - in favour of specific sites - will severely limit the number of sites benefiting from onsite renewable energy installations, not least because the PPS has primacy amongst planning documents. This means adoption by the Government of the PPS in its present form makes all district-wide council planning policies with a Merton Rule null and void. Probably over 100 planning authorities have, or about to adopt, a Merton Rule policy.

How the draft PPS will reduce the number of microgeneration installations that would have occurred if the Merton Rule was not abolished

After this whole-sale slaughter of the Merton Rule by the PPS, councils will be free, in theory, to adopt site-specific policies about specific sites as part of their emerging Local Development Documents. Of course, many councils are on the point of finalising and adopting their Local Development Documents and it is effectively too late for them to alter them in this round. The PPS deliberately prevents them from placing these site-specific policies in a following (easier and quicker to adopt) Supplementary Planning Document.

The remaining councils with time to alter their draft LDDs will find they can order a far smaller number of onsite renewables because of a variety of reasons (set out in detail by the SEP).

The result of all these “hoops” is that very few of the 20,000 major sites that come up for development in England annually, will have any higher environmental standards placed upon them. Effectively, this is a “holiday” for developers on higher standards until the next round of Building Regulation changes.

Is the PPS “illegal”?

The existing PPS 22 on renewable energy states that ‘local authorities and developers should consider the opportunity for incorporating renewable energy projects in all (our emphasis) new developments’ and that planning authorities may “require a percentage of the energy to be used in new residential, commercial or industrial developments to come from on-site developments.” But our understanding of the wording of the new draft PPS is that planning authorities would have to focus on local development or site specific opportunities, and avoid blanket requirements.

The latter is clearly a weakening of the former and a very significant u-turn on the CLG’s very clear public statement of support for the Merton rule of 8 June 2006 ie “A CLG survey of local plans published today reveals many local authorities are now adopting new requirements in their plans for on-site renewable energy in new developments. The Government is now urging all local authorities to do the same and will include the request in the new planning policy guidance on climate change due out later this year.”

Pursuant to section 82(5) of the Energy Act 2004 the Secretary of State has a duty to implement the microgeneration strategy drawn up pursuant to that section of the 2004 Act. The resulting document published in March 2006 titled “Our Energy Challenge, Power From The People - DTi Microgeneration Strategy”, on page 33, very clearly calls for the adoption of the Merton Rule by planning authorities which have yet to do so. This is supported on page 43 in the same document by a list of actions, where the Government promises to “undertake an urgent review of local plans to determine whether there is a problem with emerging plans that do not fully incorporate PPS22” (page 43).

SEP is advised that any proposed weakening of the Merton Rule in the draft PPS may well be ultra vires in view of section 82(5). The relevant sections of the draft PPS must be withdrawn before publication and that the duty in section 82(5) will be discharged. This SEP document clearly sets out, how the draft PPS, if implemented will reduce the number of installations, in the sections headed “The threat to the Merton Rule from the draft PPS” and “How the draft PPS will reduce the number of microgeneration installations that would have occurred if the Merton Rule was not abolished”.

Apparent change of policy by the Government

In the section above we have already featured the parts of the Microgeneration Strategy – a Government document published in March 2006 - which clearly promote the adoption by planning authorities of the Merton Rule. The new draft of the PPS signals an apparent change of policy by the Government, who had declared that renewable energy generation “will be at the heart of PPS1” in the recent Energy White Paper. Under the Renewables Summary of measures (page 168) the EWP states: “building on this statement of need, and the existing Planning PolicyStatement (PPS)22 on renewables, by putting renewables generation at the centre of the proposed Planning Policy Statement (PPS) on Climate Change”.

How the Planning Policy Statement 22 advocated the Merton Rule

The PPS states, under the Government’s Objectives that “Increased development of renewable energy resources is vital to facilitating the delivery of the Government’s commitments on both climate change and renewable energy. Positive planning which facilitates renewable energy developments can contribute to all four elements of the Government’s sustainable development strategy.”

To this end, the PPS advocated the Merton Rule. Paragraph 8 of the PPS states that “Local planning authorities may include policies in local development documents that require a percentage of the energy to be used in new residential, commercial or industrial developments to come from on-site renewable energy developments.”

Its council area-wide nature was embodied in paragraph 18 which says: “Local planning authorities and developers should consider the opportunity for incorporating renewable energy projects in all new developments. Local planning authorities should specifically encourage such schemes through positively expressed policies in local development documents."

8 June 2006 statement on implementation of PPS22 by the Minister for Housing & Planning

The government liked the Merton Rule so much that ministers became impatient with councils that had not adopted it so far. In a Written Ministerial Statement on Implementation of PPS22 by Yvette Cooper, the Minister for Housing and Planning published in Hansard Thursday 8 June 2006 she stated: “On 9 February my hon. Friend the Minister for Energy informed the Standing Committee of the Climate Change and Sustainable Energy Bill that I would undertake an urgent review of local plans to determine whether there is a problem with emerging plans that do not fully incorporate PPS22 guidance. That review has now been completed.

“The review has shown that in emerging new style regional spatial strategies and local development frameworks there has been a strong take-up of the policy in PPS22 on the use of on-site renewables in new developments. For those authorities preparing new plans where an appropriate stage in plan making has been reached, 26 out of 29 surveyed have devised policies to secure on-site renewables in new developments. The majority of them have set a requirement for 10 percent on-site renewables, where it is viable. Many of those at an earlier stage of developing their local development frameworks have not yet included PPS22 policies, although they still have time to do so. We strongly encourage them to do so. For those areas still completing old style plans, such as unitary development plans, policies on on-site renewables are less likely to have been included.

“It is essential that all planning authorities follow this example and take account fully of the positive approach to renewables set out in PPS22 at the earliest opportunity in their plan-making. In particular the Government expects all planning authorities to include policies in their development plans that require a percentage of the energy in new developments to come from on-site renewables, where it is viable. Such policies have a vital role to play in reducing emissions, through the use of carbon-neutral energy sources. Local authorities who are now updating their plans through new local development frameworks should take the opportunity to update their policies in this area. The Government's forthcoming draft planning policy statement on climate change will be an opportunity to consider further how the planning process more generally can help combat climate change by extending the contribution of renewables from both on-site and off-site sources.

“I have instructed my officials to write to all chief planning officers enclosing a copy of this ministerial statement and to draw attention to the importance that the Government attaches to such measures in tackling climate change.”

Definition of the “Merton Rule”

The definition of what is referred to as the “Merton Rule” is a borough wide prescriptive planning policy that requires new developments to generate at least 10% of their energy needs from on-site renewable energy equipment. The most commonly accepted threshold is 10 homes or 1,000m2 of non-residential development – though this is sometimes lower. This is the accepted definition by local (and regional) planning authorities, academic institutions, trade and professional bodies, and the development, construction and engineering industries.

The policy already allows local authorities to require more than 10% on specific sites if a reasonable case can be made for doing so, and as a counterbalance, is always subject to a "viability" clause which voids the policy if a developer can conclusively prove that it would be an undue burden.

Croydon, Merton and Woking have yet to see any evidence showing that the additional capital cost of renewable energy equipment is an undue burden on the developer, or that this additional cost cannot be realistically passed onto the end purchaser or renter of the property. The obvious advantage to the occupier/owner is lower monthly bills and added property equity.

There is lots more in their report - particularly useful is the evidence of people wanting renewables - included is these bits of research findings:

Key research findings for House-builders

• Homeowners are concerned over how much electricity/gas and water they use (75% for energy; 61% for water);
• Water and energy efficiency are becoming more important features for home buyers. While 45% of respondents state that energy efficient or water saving features were fairly or very important when choosing their current home, 73% say it would be fairly or very important in choosing their next home;
• 92% of respondents want to see sustainability features offered as options on new homes. 64% of respondents think these should be compulsory;
• Home owners hold positive associations with sustainable homes, seeing them as modern, attractive, hi-tech, fashionable, and good value (in comparison with old-fashioned, ugly, lo-tech and poor value); and
• Home owners are prepared to pay extra to live in a sustainable housing development. Two thirds of homeowners would be prepared to pay a monthly charge for sustainability services, such as convenient recycling facilities, green-caretaker, and car sharing.

Key research findings for Government

• Four out of five homeowners believe that more environmentally friendly homes would help combat climate change;
• Three in five homeowners claim to have installed energy and/or water saving features since moving into their homes. Those homeowners who have lived in their home for more than ten years are most likely to have taken action. Those who claim they have installed energy saving features are also more likely to be concerned about how much energy and gas they use;
• 92% of respondents want to see sustainability features offered as options on new homes. 64% of respondents think these should be compulsory;
• Lack of information is seen as a key barrier in driving demand for sustainable homes. 70% of homeowners claim to know little or nothing at all about sustainable homes. Three quarters of home owners (73%) feel the Government should be responsible for communicating the benefits of sustainable homes to the public.”

Let us hope this campaign bears fruit - it is outrageous the Government are even suggesting going back on this rule. I would urge others to also write to the Government on this issue. Lastly I came across this useful pdf document on renewables here from the Energy Savings Trust.