Model clause

Sustainable and Circular Economy Principles in Leasing Arrangements for Repairs and Alterations

Aatmay's Clause

Sustainable and circular economy provisions for the repair, alteration, yielding up and decoration covenants in a lease, which encourage landlords and tenants to re-use goods and materials.

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Why use this?

The Waste (Circular Economy) (Amendment) Regulations 2020 transpose the EU 2020 Circular Economy Package (“CEP”) and the Waste Framework Directive 2018 into England.

These Regulations (and the Welsh equivalent) particularly encourage the use of circular economy principles to ensure we maximise the resource efficiency of products and prevent waste in England and Wales.

How it promotes a net zero future

These clauses will encourage landlords and tenants to reuse materials or to use recycled or reclaimed materials where possible, and where this is not possible, sustainable materials in their alteration or repairing obligations. It will also encourage landlords or tenants to consider the lifespan of a product/design/construction of a building when undertaking these projects.

This will help to reduce the amount of waste going to landfill, and reduce the reliance on natural resources.

Disclaimer - please read

The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) does not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and does not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

Note: Words with a capital letter are assumed to be defined elsewhere in the Lease or Licence or Agreement.

Additional Definitions

Adverse Climate Effect means an adverse effect on the climate, including but not limited to:

  • an increase in Greenhouse Gas Emissions relating to the [Property][Premises];
  • discarding stock that was created using Natural Capital without using it;      
  • wasting materials so that the Embedded Carbon of the [Premises] [Property][and/or Building] is increased; or     
  • reduced Air Quality.

Air Quality means the condition of air in and around the [Premises] [Property][and/or Building], in particular the extent to which it is clean, clear and free from pollutants including smoke, industrial gases and dust.  [see the TCLP Glossary]

Efficiency Standard means that design, supply, construction, installation, commissioning and repair practices are carried out:

  • responsibly, sustainably, ethically and in accordance with all applicable laws and good business practice; 
  • [using best endeavours to ensure that the materials and goods are sourced from manufacturers and suppliers located as close to the [Property][Premises] as reasonably practicable;] and
  • in a manner which maximises the prospects of achieving the Efficiency Objective. 

Efficiency Objective means that, in relation to the occupation, operation and use of the [Property][Premises], the parties will work together to:

  • maximise energy efficiency in the [Property][Premises];
  • [achieve sustainability performance targets of the [Landlord’s][Tenant’s] sustainability linked loan;]
  • reduce the Greenhouse Gas emissions associated with the [Property][Premises] to help the parties achieve their Net Zero Target;
  • use sustainable materials and avoid the use of materials that increase the Embedded Carbon;
  • re-use and recycle materials to ensure that they are salvaged or otherwise saved from landfill;
  • adopt environmentally friendly working methods, including minimising energy use through plant and site services;
  • protect and enhance existing ecological features on site;
  • minimise air (dust and fumes) and noise pollution;
  • minimise water use;
  • utilise local suppliers; and
  • promote green travel to and from the site (including walking, cycling or using public transport).

Embedded Carbon means:

  • In relation to building materials the Greenhouse Gas Emissions that occur through their extraction, manufacture and transportation.
  • In relation to  the [Property][Premises], the Greenhouse Gas emissions that occur when it is built, repaired, renovated and deconstructed. [see the TCLP Glossary]

Environmental Performance means all or any of the following in relation to the Premises][Property][and/or Building]]:

  • energy consumption; 
  • water consumption and discharge;
  • waste generation and management; 
  • generation and /or emission of Greenhouse Gases; and/or 
  • other adverse environmental impacts.  [see TCLP Glossary]

EPC Obligation means an EPC rating of [A or the highest rating achievable under any equivalent or successor rating system/ B].

Greenhouse Gas Emissions means emissions of Greenhouse Gases, each expressed as a total in units of carbon dioxide equivalent (CO² e). [see TCLP Glossary]

Greenhouse Gases (GHGs) means the greenhouse gases listed at Annex A of the 1998 Kyoto Protocol to The United Nations Framework Convention on Climate Change, as may be amended from time to time including: carbon dioxide (CO²), methane (CH4), nitrous oxide (N²O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6) and nitrogen trifluoride (NF3). [see TCLP Glossary]

Natural Capital means those elements of the natural environment which provide valuable goods and services to people, such as stock of forests, water, land, minerals and oceans. [see TCLP Glossary]

Net Zero Target means a reduction of Greenhouse Gas Emissions from all operations [including value and supply chains] to net zero by [INSERT DATE] so there is a balance between sources and sinks of Greenhouse Gases in a calendar year and for each subsequent year thereafter. [see TCLP Glossary]

Reclaimed Materials means materials that have been removed from another building or site, which can be reused in the [Premises][Property][and/or Building] without substantial modification. 

Recycled Materials means materials which, through a recovery operation, have been reprocessed into products, materials or substances whether for the original or other purposes. 

Recyclable Materials means materials which can go through a recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. 

Reused Materials means materials, products or components that are not waste are used again for the same purpose for which they were conceived.

Sustainable Materials means products or materials:

  • which are extracted, produced and made in a way that minimises the Embedded Carbon; and
  • which are extracted, produced and made without depleting non-renewable resources and without disrupting the established steady-state equilibrium of the environment and key natural resource systems; and
  • which are recyclable or reusable. 

Waste Management Plan means [an up to date][the] site waste management plan [attached at schedule [X] and] produced by the Tenant or the Contractor following consultation with the Landlord, which seeks to ensure materials are managed efficiently and to reduce Waste.     

Waste means spoil, waste, rubbish, debris, materials or goods or surplus materials generated by or used in undertaking the Works which are not incorporated into the Works at practical completion. 

Additional Clauses

LEASE 

1. Insert in Tenant and Landlord Covenants 

1.1 The Parties acknowledge that in complying with their obligations under this Lease, each will use [best OR [all] reasonable [but commercially prudent]] endeavours to act at all times in a manner which maximises the prospect of achieving the Efficiency Objective.

2. Tenant Covenants – Repair

2.1 To keep the [Premises][Property] in good and substantial repair and condition and when necessary to replace and renew [any Landlord’s fixtures and fittings] with:

2.1.1. Reused Materials, Reclaimed Materials or Recycled Materials but where these are not available or appropriate then;

2.1.2. Sustainable Materials, but where these are not available or appropriate then; 

2.1.3. Recyclable Materials, but where these are not available or appropriate then; 

2.1.4. materials or products

of an equivalent quality [and value] [to the reasonable satisfaction of the Landlord].  

3. Tenant Covenants – Decoration 

3.1 To carry out all decoration in a proper and workmanlike manner using good quality:

3.1.1. Reused Materials, Reclaimed Materials or Recycled Materials, but where these are not available or appropriate then;

3.1.2. Sustainable Materials, but where these are not available or appropriate then; 

3.1.3. Recyclable Materials, but where these are not available or appropriate then;

3.1.4. materials or products 

[to the reasonable satisfaction of the Landlord].  

4. Tenant Covenants – Yielding-up 

4.1. The Tenant shall not be required to reinstate any alterations carried out in accordance with clause [●] of this Lease where each of the following applies at the expiry or sooner determination of the Term:

4.1.1. any such reinstatement is not reasonably required by the Landlord having regard to the Landlord’s intention in respect of the use or re-letting of the [Premises][Property][and/or Building] and the Landlord has notified the Tenant to that effect [no later than [three] months] prior to the date of expiry or sooner determination of the Term; and 

4.1.2. any such reinstatement would [materially] adversely affect the [Environmental Performance] of the [Premises][Property][and/or Building] and/or the EPC                [rating of the [Premises][Property][and/or Building]].

5. Services and Service Charge

5.1 In carrying out the Services, the Landlord shall use [best OR [all] reasonable [but commercially prudent]] endeavours to use:

5.1.1. Reused Materials, Reclaimed Materials or Recycled Materials, but where these are not available or appropriate then;

5.1.2. Sustainable Materials, but where these are not available or appropriate then; 

5.1.3. Recyclable Materials, but where these are not available or appropriate then;

5.1.4. materials or products 

of an equivalent quality [and value].  

 

LICENCE FOR ALTERATIONS  

(see Definitions section above)

Additional Recitals

(A) The Parties acknowledge that a priority for the design, carrying out and reinstatement of the Works is to ensure, as far as reasonably practicable, that the materials used in the Works can at the end of their life be:

(a) reused and/or recycled in whole or where this is not possible in part, and/or 

(b) salvaged or otherwise saved from landfill in whole or where this is not possible in part.

(B) The Parties acknowledge that in complying with their obligations under this Licence, each will use best endeavours to act at all times in a manner which maximises the prospect of achieving the Efficiency Objective and minimises an Adverse Climate Effect. 

Additional clauses/To be inserted within existing clauses

1. Carrying out and Completing the Works

1.1. The Tenant must carry out and complete the Works (and ensure that the Works are carried out and completed):

1.1.1. using (to the extent reasonably practicable) good quality:

(a) Reused Materials, Reclaimed Materials or Recycled Materials, but where these are not available or appropriate then;

(b) Sustainable Materials, but where these are not available or appropriate then; 

(c) Recyclable Materials, but where these are not available or appropriate then;

(d) materials or products 

which are fit for the purpose for which they will be used and to the reasonable satisfaction of the Landlord;

1.1.2. in accordance with a Waste Management Plan and using best endeavours to minimise Waste;

1.1.3. in accordance with Efficiency Standards in order to mitigate against an Adverse Climate Effect;

1.1.4. at all times in a manner which maximises the prospect of achieving the Efficiency Objective on Practical Completion [and during the operating life] of the Works.

1.2. For the purpose of assessing whether practical completion of the Works has been achieved, the [Employer/Employer’s Agent/Architect/Contract Administrator] shall not issue any certificate to that effect until such time as the EPC Obligation has been met.

1.3. The failure of the Tenant to comply or procure compliance with the provisions of clause 1.1 will constitute a [substantial] breach of this Licence. 

2. Reinstatement 

2.1. The Tenant shall not be required to reinstate any alterations carried out in accordance with this Licence where each of the following apply at the expiry or sooner determination of the Term:

2.1.1. any such reinstatement is not reasonably required by the Landlord [not less than three months prior to the end of the Term having regard to the Landlord’s intention in respect of the use or re-letting of the [Premises][Property][and/or Building]; and 

2.1.2. any such reinstatement would [materially] adversely affect the [Environmental Performance] of the [Premises][Property][and/or Building] and/or the EPC [rating of the [Premises][Property][and/or Building]].

AGREEMENT FOR LEASE (WITH DEVELOPMENT/WORKS OBLIGATIONS) OR DEVELOPMENT AGREEMENT  

Additional Recitals

(A) The Parties acknowledge that a priority for the design, carrying out and reinstatement of the [Works][Development] is to ensure, as far as reasonably practicable, that Waste will be minimised and that the [Works][Development] can at the end of their life be:

(i) reused and/or recycled in whole or where this is not possible in part; and/or 

(ii) salvaged or otherwise saved from landfill in whole or where this is not possible in part.

(B) The Parties acknowledge that in complying with their obligations under this Agreement, each will use best endeavours to act at all times in a manner which maximises the prospect of achieving the Efficiency Objective and minimises an Adverse Climate Effect. 

Additional clauses/To be inserted within existing clauses

1. [Landlord Works][Tenant Works][Development Obligations]

1.1. The [Landlord][Tenant][Developer] shall use [best OR [all] reasonable [but commercially prudent]] endeavours to procure that the [[Landlord’s][Tenant’s] Works are] [Development is] carried out:

1.1.1. using (to the extent reasonably practicable) good quality:

(a) Reused Materials, Reclaimed Materials or Recycled Materials, but where these are not available or appropriate then;

(b) Sustainable Materials but where these are not available or appropriate then; 

(c) Recyclable Materials, but where these are not available or appropriate then; 

(d) materials and products 

which are fit for the purpose for which they will be used and to the reasonable satisfaction of the Landlord;

1.1.2. in accordance with a Waste Management Plan and using best endeavours to minimise Waste;

1.1.3. in accordance with Efficiency Standards in order to mitigate against an Adverse Climate Outcome;

at all times in a manner which maximises the prospect of achieving the Efficiency Objective on Practical Completion [and during the operating life] of the Works.

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