Model clause

Securing Net Zero in Planning Development Projects

Evelyn & Ezra's Clause

Provide drafting resources to help local planning authorities gain confidence in requiring carbon neutral development as standard in their areas through policy, planning conditions and obligations.

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Why use this?

These suggestions are suitable for adoption through a range of different planning documents, including local planning authority policies, planning permissions, section 106 agreements and unilateral undertakings.

The suggestions below can be applied nationwide.

Methods of assessing a development’s carbon neutral status are still being developed and this should be monitored.

How it promotes a net zero future

Such a mechanism will encourage and assist with nationwide carbon neutral planning developments.

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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

Mechanisms, suggested drafting solutions and resources

  1. Planning policy examples
  2. Planning obligation to secure a sustainability plan
  3. Planning condition or obligation to secure net zero development (adapted from [Rory’s clause] of this Playbook.)
  4. Whole lifecycle carbon assessments
  5. ‘Be Seen’ energy monitoring
  6. Carbon offset funds and planning obligations securing carbon offset contributions

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  1. Planning policy examples

Draft London Plan (draft (Intend to Publish) version Dec 2019) contains policy SI 2 Minimising greenhouse gas emissions (p414), which states major developments should be net zero-carbon in operation, follow the energy hierarchy (be lean, be clean, be green, be seen), include a detailed energy strategy, reduce beyond building regulations and if zero carbon cannot be met on site, provide offsite mitigation or a cash in lieu contribution. Requirement for certain development proposals to provide a whole life-cycle carbon emissions assessment (see point 4 below).

  1. Planning obligation to secure a sustainability plan 

Additional Definitions

Sustainability Plan means a plan to be agreed in writing with the Local Planning Authority which sets objectives to ensure the Development is constructed and maintained for the lifetime of the Development in a way that is sustainable (in accordance with paragraph 8 of the National Planning Policy Framework (as amended from time to time)) and where appropriate shall impose obligations on the Developer including (but not limited to) the following:

a) a recommendation for the Developer and any future landlords of the Development to use the most detailed version of the sustainable obligations set out in Schedule 6 of the Model Commercial Lease;

b) an obligation to monitor the usage of electric car charging points in any public/common parking areas and to submit an annual report to the Local Planning Authority on the usage of the electric car charging points. Where the usage of the electric car charging points exceeds X hours per month, an obligation to provide additional electric car charging points to meet demand;

c) an obligation where possible to use renewable energy through on-site energy sources (such as solar or wind) or where it is not possible to use on-site renewable energy sources, an obligation to source renewable energy from energy suppliers;

d) an annual requirement to publish in the public domain 5-10 initiatives which are being promoted at the Property that support sustainable development (in accordance with paragraph 8 of the National Planning Policy Framework).

e) an obligation to provide a sustainability information pack to occupiers on first occupation which shall include (but is not limited to) the following items:

(i) information on waste recycling schemes at the Development and the Greenhouse Gas emissions that can be avoided by recycling;

(ii) information on the environmental benefits of using of energy-saving light bulbs/ LEDs;

(iii) [information on the environmental and financial benefits of using smart meters and how to obtain one;]

(iv) information on the environmental and financial benefits of reducing water usage and how to do so;

(v) information on the environmental benefits of using online shopping services and how to do so;

(vi) information on using public transport and the local services available; and

(vii) information on the benefits of using electric and/or hybrid cars.

f) an obligation to promote the use of [x]% of public open space provided at the Development as an allotment for use by occupiers of the Development;

g) a requirement to submit an annual (or biennial) report to the Local Planning Authority setting out whether the objectives in the sustainability plan have been achieved and to agree revised/ updated objectives with the authority for the following year (or two years).

Sustainability Plan Coordinator(s) means a person or persons appointed by the Developer and approved in writing by the Local Planning Authority to be responsible for the co-ordination and ongoing management of the Sustainability Plan.

Sustainability Plan Monitoring Fee means £[X] payable to the Local Planning Authority towards the Local Planning Authority’s costs incurred in monitoring compliance with the Sustainability Plan.

Clause xx: Planning Obligation 

The Owner agrees:

1) Prior to Commencement of the Development, to agree the Sustainability Plan with the Local Planning Authority and appoint a nominated Sustainability Plan Coordinator(s) and notify the details of the Sustainability Plan Coordinator(s) to the Local Planning Authority.

2) To comply with the terms of the Sustainability Plan throughout the lifetime of the Development PROVIDED THAT any failure on the part of the Developer to comply with this provision which is due to acts, events or other circumstances beyond the reasonable control of the Developer shall not constitute a breach of this Agreement.

3) Not to allow Occupation of the 1st Dwelling on the Land until the Sustainability Plan Monitoring Fee has been paid to the Local Planning Authority.

4) Developers shall review the Sustainability Plan in accordance with the provisions of and timescales set out in the Sustainability Plan and to submit the results of such review(s) to the Local Planning Authority.

5) Following discussions with the Local Planning Authority, Developer shall have regard to any reasonable recommendations made by the Local Planning Authority in relation to each review and incorporate, where reasonable, such recommendations.

  1. Planning obligation to secure net zero development (adapting Rory’s clause and related definitions)

Carbon Capture means the [technology for and] process of capturing, transporting and storing waste carbon dioxide.

Carbon offsetting means the purchase of a quantity of carbon credits equal to the amount of Residual Emissions from a project that has been verified in accordance with [insert name of voluntary standard] or from a United Nations Framework Convention on Climate Change (UNFCCC) clean development mechanism (CDM) [or [successor/equivalent] UNFCCC mechanism] project.

District Heating Scheme means a new or existing system for the distribution of heat and hot water to buildings on the Development.

Embodied Carbon means the Greenhouse Gases that are emitted through the production and delivery of building materials for and used in the Development.

EV means a vehicle that uses one or more electric motors for propulsion and obtains all its power from an electric battery.

EV Parking Spaces means spaces specifically designated for charging EVs through charge points or directly from the grid.

EV Substation Capacity means a substation with sufficient capacity to be able support the requirements of the EV Parking Spaces.

Greenhouse Gas (GHG) means gases that contribute to or accelerate the greenhouse effect by absorbing infrared radiation, including but not limited to: carbon dioxide, methane, nitrous oxide, sulphur hexafluoride, hydrofluorocarbons, perfluorocarbons and chlorofluorocarbons.

Hydrocarbons means principally oil, gas and coal or other fuel source derived from an organic compound made up of hydrogen and carbon.

Net Zero Objectives means obligations to:

a) maximise the proportion of Zero Carbon Housing on the Development;

b) use building materials with the lowest Embodied Carbon reasonably available;

c) maximise self-generation of renewable energy on the Development;

d) minimise the use of heating and hot water technologies that use Hydrocarbon fuels or produce Greenhouse Gases;

e) establish a Community Energy Programme to supply renewable energy to the Development;

f) maximise Carbon Capture at the Development;

g) use Carbon Offsetting for the Development as a last resort;

h) minimise the use of energy by the Development using ‘smart grid’, demand side energy management and other technologies;

i) prioritise the use of electricity from renewable energy sources over all other types of fuel on the Development;

j) maximise the EV Substation Capacity; and

k) connect into existing District Heating Schemes where possible.

Residual emissions means the [Greenhouse Gas] emissions that are emitted after all reasonable efforts have been made by the Developer to reduce the GHG emissions associated with the Development.

Zero Carbon Housing means dwellings that are designed to [maximum energy efficiency standards/ Passive House standards/BREEAM rating outstanding] and to be heated and powered only through [on-site/off-site] renewable technologies and where their construction has resulted in net zero carbon emissions including through efficient methods of construction, the use of materials with low Embodied Carbon and the use of Carbon Offsetting for [unavoidable/residual] emissions.

Obligations

The Developer agrees:

1.1 Prior to commencement, to submit to the Local Planning Authority a plan to achieve all of the Net Zero Objectives (Net Zero Objectives Plan).

1.2 Not to Commence Development before the Local Planning Authority has approved the Net Zero Objectives Plan.

1.3 To comply with the Net Zero Objectives Plan subject to any amendments agreed in writing between the Local Planning Authority and the Developer.

  1. Whole Life-Cycle Carbon assessments

‘Whole Life-Cycle Carbon (WLC) emissions are the carbon emissions resulting from the materials, construction and the use of a building over its entire life, including its demolition and disposal. A WLC assessment provides a true picture of a building’s carbon impact on the environment.’

  1. ‘Be seen’ monitoring

Monitoring of a development’s energy use during the first years of its life. This is to help understand (and reduce) the gap between a development’s theoretical energy use and its actual operational energy use.

  1. Carbon offset funds and planning obligations securing carbon offset contributions

For guidance on how to set up a carbon offset fund and how the funds may be spent, see: Carbon Offset Funds, Greater London Authority guidance for London’s Local Planning Authorities on establishing carbon offset funds, Mayor of London, October 2018, available at 28.07.2020 at https://www.london. gov.uk/what-we-do/planning/planning-applications-and-decisions/pre-planning-application-meeting-service.

Definitions 

Carbon Offset Contribution means the sum to be calculated in accordance with the Carbon Offset Contribution Formula as taken from the Local Planning Authority’s [insert Supplementary Planning Document reference] towards the provision of carbon offsetting projects within the Local Planning Authority’s administrative area.

[Example] Carbon Offset Contribution Formula means the following formula:

(a) x (b) x (c) 

where:

(a) = carbon gap (residual tonnes of carbon)

(b) = price of carbon (£)

(c) = 30 years

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