FAVOURITES – 13 July, 2010 – The number of rating tools, policies, reports, incentives and legal rulings on sustainable residential  development has proliferated in recent years. In this comprehensive work, legal firm Herbert Geer has created clear and focused guide through the maze. At least for the eastern seaboard.

In 2020, Australian greenhouse emissions are projected to be 664 million tonnes of carbon, or an increase of 120 per cent of 2000 levels (1) unless measures are taken to reduce them. Of this, the residential sector generates about 17.6 per cent. (2) In addition about 85 per cent of Australians live on the coast (including cities), (3) exposing housing to particular risks. The average annual carbon emissions for houses in the eastern states is:

  • NSW – 8 tonnes (4);
  • Qld – 8.24 tonnes (5);
  • Vic – 10.7 tonnes (6) (a result of Victoria’s greater reliance on brown coal for energy).

In the absence of a uniform national program of emissions controls, the housing industry has to contend with a mixed bag of measures to address the impacts of climate change and other and environmental values upon housing product. Some are regulatory, some by way of market incentives, some government rebates, some voluntary. Some are aimed at housing design, some at performance, some at the householder and others at the developer. All are rapidly changing.

This paper summarises the principal measures relevant to promoting sustainable housing on the eastern seaboard.

1.Commonwealth Schemes

Energy and water standards

The Commonwealth has made very few regulations directly affecting the energy and water  performance of housing in Australia. It has a number of other government policies and strategies which promote sustainability in housing, but are not mandatory.

The Building Code of Australia

In response to concerns over global warming, the Australian Government announced in July 2000 that agreement had been reached with industry and State and Territory Governments to adopt a two-pronged approach to reducing greenhouse gas emissions from buildings. The first approach was the introduction of mandatory minimum energy performance requirements through the Building Code of Australia (BCA), and the second approach was the encouragement of best practice voluntary initiatives by industry.

More recently, the Council of Australian Governments (COAG) has recently requested for the BCA to have increased energy efficiency provisions included in the 2010 amendments. These new provisions include:

  • 6 star energy ratings, or equivalent, for new residential buildings; and
  • increases in energy efficiency requirements for commercial buildings

Technical details include improved standards for insulation performance, glazing, air supply, floor performance etc. These new amendments were intended to be operative on 1 May 2010, although that may be delayed in some states.

National Greenhouse and Energy Reporting Scheme

Some development companies are obliged to report under the NGERS Scheme (7) and the Energy Efficiency and Opportunities Act 2000 by virtue of their group energy consumption or greenhouse gas input, but these statutes are not aimed at housing in particular.

Carbon Pollution Reduction Scheme

Nor will the Carbon Pollution Reduction Scheme (CPRS) (should it be passed) as it is currently designed and drafted have any direct regulatory impact on houses. The Commonwealth Government has proposed a number of measures to counterbalance the effect of the CPRS on households, the most immediate of which will be the increased price of intense carbon producing goods.

The Australian Government anticipates that the effect will be “modest” when it comes to the cost of these changes, allowing for the implementation of a household rebate assistance scheme aimed at low to middle income households worth over $50 billion. The rebate per household is dependent on income and the number and age of dependent children.

It remains to be seen what happens to the draft CPRS, now that political and legislative progress has (for now) been deferred until 2012-2013.

Planning and coastal development

“Climate Change Risks to Australia’s Coast”

On 14 November 2009, The Department of Climate Change and Energy Efficiency (DCCEE) released the first pass national assessment report entitled “Climate Change Risks to Australia’s Coast” (8). The report was created as a result of the National Climate Change Adaptation Principles in order to support informed decision-making about Australia’s climate issues.

The report looked at the current state of Australia’s coast and the possible future dangers to be faced, as well as consequential changes. Though the report caters for the ‘worst case’ scenario, it specifically identified the mid-range sea level rise of 0.5m to be concerning enough that events occurring every ten years could become as frequent as one in ten days by 2100. This obviously would greatly affect whole residential communities; an estimated $63 billion (replacement value) was given for residential buildings identified as being potentially at risk. The main concern however was for those low-lying communities not typically associated with capital cities, whose adaptive capacity was lower due to lack of awareness and resources.

Of the original 711,000 residential addresses identified by the report as “at risk” 60 per cent were located in Queensland and New South Wales and were not always facing open ocean (but were looking at quieter bodies of water, such as lakes and lagoons). In New South Wales over 50 per cent of “at risk” households belong to the local government areas of Lake Macquarie, Wyong, Gosford, Wollongong, Shoalhaven and Rockdale.

The report further recommended auditing infrastructure at risk, such as those identified residential dwellings discussed above, to establish adequate preparations for the impacts of climate change.

Overall however, the Report is light on recommendations, leaving it to the states, territories, local government, industry and the affected communities to take a primary role in on-ground coastal adaptation action, and not the Federal Government. In addition it notes that the insurance industry has a particular role in managing risk in the coastal zone.

Its broad recommendations include:

  • a risk based vulnerability zoning for land;
  • periodic (15 years) reviews of standards for building technology;
  • infrastructure planning that recognises climate change risk (for example, higher bridges); and
  • planned adaptive infrastructure.

It also notes that industry has suggested that an insurance fund could be established into which owners of low-lying coastal land would pay a regular levy so as to enable compensation if/when rising sea levels lead to their land becoming unusable.

Rating tools

Nationwide House Energy Rating Scheme – NatHERS9

Initiated as a joint Federal, State and Territory Government initiative joint Federal, State and Territory Government initiative, NatHERS is a software framework deployed by other rating tools to rate the potential energy efficiency of Australian homes, based on thermal comfort and performance. All software tools are required to assess the same minimum set of design features, and must produce a consistent rating.

The importance of NatHERS and its subsequent adaptations lies in its applicability to planning laws and rules for disclosure of home energy efficiency at sale, discussed on a state by state basis below.

NatHERS requires each software developer to demonstrate the compatibility of their software with specific minimum standards described in the Software Accreditation Protocol.10 The choice of software tools allows assessors to use the data input interface that best suits their needs, whilst ensuring consistent results.

NatHERS provides a star rating of 1 to 10; from worst to best practice, based on an assessment of:

  • the layout of the home;
  • the construction of its roof, walls, windows and floor;
  • the orientation of windows and shading to the sun’s path and local breezes
  • how well these suit the local climate.

The rating relates to the layout of the home itself, rather than consideration of energy consumption of water systems, lights or household appliances as these are generally replaced throughout the life of the home. The ratings do not necessarily need to be made before the house is built; they can still be done after construction and the software is becoming a popular tool among renovators looking to make their homes more sustainable. Houses built in 1990 usually fell on the bottom of the scale, but since the introduction of the scheme in 2003, they are now being built around a 6 star rating due to its increased popularity with those looking to improve the sustainability of their homes.

One can obtain a NatHERS rating by using any of the following software accredited under NatHERS:

  • AccuRate (version 1.0)
  • BERS Professional – granted provisional accreditation 8 November 2007
  • FirstRate 5 – granted provisional accreditation 31 August 2007

These are discussed below.

AccuRate (11)

AccuRate is software developed by the CSIRO to help residential buildings be more energy efficient and sustainable. The software helps to calculate annual totals of heating and cooling in multizone dwellings, giving an overall star rating.

AccuRate calculates hourly temperatures and heating and cooling energy requirements in a multizone dwelling, and assigns a star rating on the energy efficiency of the dwelling’s envelope. The star rating – from 0 to 10 stars – is based on the sum of the annual heating and cooling requirements for the home.

AccuRate provides modelling of the following over 69 climatic zones, and up to 50 living spaces within a home:

  • natural ventilation and roofspaces;
  • user-defined constructions;
  • sub-floor spaces;
  • skylights and horizontal reflective air gaps; and
  • extra climatic zones.

It is worth noting NatHERS has now adopted AccuRate as its reference tool.

BERS Professional

BERS Professional is a competing software program aimed at demonstrating compliance with the thermal regulatory requirements of the Building Code of Australia (BCA).

FirstRate 5

FirstRate 5 is another software program for administering the NatHERS rating tool, developed by Sustainability Victoria.

Disclosure obligations at sale

The Council of Australian Governments (COAG) released its National Strategy on Energy Efficiency in July 2009, “to position energy efficiency alongside the Carbon Pollution Reduction Scheme as a key plank in Australia’s efforts to combat climate change”.(12)

Included in the strategy was a proposal to phase in mandatory disclosure of residential building energy, greenhouse and water performance at the time of sale or lease, commencing with energy efficiency by May 2011.

The strategy set out three stages to implement this aspect of the strategy, leveraging work from the ACT Mandatory Disclosure Scheme (see immediately following):

  • Stage one – completion of policy clarification and systems design with a regulatory impact analysis (RIA) to be released in mid-2010;
  • Stage two – refine the scope of the scope after release of the RIA over the course of 2009–10 and completed by May 2011;
  • Stage three – phase-in of the scheme from May 2011.

The RIA is yet to be released.

The Australian Capital Territory (ACT) scheme requires that all dwellings being sold must have an Energy Efficiency Rating (EER) Statement, informing prospective buyers of energy performance as per Civil Law (Sale of Residential Property) Act 2003 (ACT), section 23. An accredited energy assessor is to be employed in order to issue the EER Statement and must be provided along with the contract of sale.

Recent studies have suggested that higher EERs in the ACT have a connection to the sale price of detached dwellings (13): generally, the higher the stars, the higher the purchase price. While the studies have been somewhat restricted in their data and have attempted to take into account extra factors such as inflation, but it nevertheless appears that sustainable improvements made to existing homes and environmentally friendly construction of new homes certainly increases a buyer’s interest.

Rebates

Living Greener (14)

The Federal Government’s Living Greener programs experienced severe difficulties in early 2010, leading to the abandonment of the free home insulation program and the Solar Hot Water Rebate in February 2010, followed by withdrawal of the interest free green loan of $10,000 for energy efficiency products a month later.

The insulation and green loans programs have been significantly revised and reworked. Rather than rebates or subsidies, they now offer free safety and sustainability assessments for eligible households.

Renewable Energy Bonus Scheme

The Renewable Energy Bonus Scheme replaces the Solar Hot Water Rebate and enables eligible households to receive a rebate for the installation of a solar hot water system or a heat pump hot water system installed after 20 February 2010. $1000 rebates will be available for ceiling installation and solar hot water systems and $600 rebates for heat pumps systems.

Renewable Energy Certificates (RECs)

At the time of installing new solar or heat pump hot water systems, (and other small scale eligible technologies) households may also be eligible to create RECs equivalent to the output of up to 15 years operation.

In most cases, installers have acquired these rights in return for providing a cash payment or discount on the price of the system installed. The level of “subsidy” currently depends on a number of factors including the variable price of RECs on the REC market.

To encourage (incentivise) the installation of “small generation units”, the Scheme includes a “multiplier” in respect of the first 1.5kilowatts of capacity installed. This means that the number of additional RECs that can be created in respect of the first 1.5kW is based on a multiplier of 5 for small generation units installed before 30 June 2012. This multiplier reduces overtime to 1 by 1 July 2015.

From 1 January 2011, RECs created in respect of small generation units and solar hot water systems will be known as “small scale technology certificates” and a clearing house will be established through which small scale technology certificates can be sold at a fixed price of $40 per certificate. This will operate in parallel but separately from the “large scale generation certificate scheme”.

Green Start

A new Green Start program is intended to commence from 1 January 2011 directed at helping low income households and those most at need improve their energy and water efficiency and help tackle climate change. Details of the program are yet to be finalised.

National Rainwater and Greywater Initiative

A rebate of up to $500 is available Australia-wide under the National Rainwater and Greywater Initiative for the installation of water tanks or greywater systems. Applications are limited to homeowners and landlords, and the tanks must be installed in their principal place of residence which must be an existing dwelling. Greywater treatment systems and rainwater tanks holding 4000 litres attract the full rebate, while rainwater tanks between 2000 and 3999 litres receive $400 assistance. The greywater tank itself however must be permanently connected to waste water pipes in order to receive the rebate.

Australian Carbon Trust – the Energy Efficiency Pledge Fund and the Energy Efficiency Trust15

The effectiveness of the recently established16 Australian Carbon Trust is yet to be demonstrated. The Government established the Trust to provide information and help implement measures to reduce Australia’s carbon footprint at a grassroots level, focusing on households and businesses by 2 funds:

  • the Energy Efficiency Pledge Fund – a voluntary program under which householders can calculate their energy consumption and pledge the savings form any energy savings measures to buy and retire Australian Emission Units (carbon credits) under the CPRS (assuming it is passed) -obviously a measure that is delayed due to the CPRS delays;
  • the Energy Efficiency Trust – $50 million Government seed funding to promote innovative approaches to energy efficiency investment in the business sector.

Feed in tariffs

The Commonwealth has not legislated any feed in tariffs for the houses which install solar cells.

2. NSW Schemes

Energy and water standards

BASIX

The Building Sustainability Index (BASIX) is a regulated planning tool aimed at forcing new housing to reduce water usage and energy consumption and to improve thermal efficiency.

Introduced in 2004, it sets benchmarks for housing design and technology implementation as follows:

  • For single dwelling houses:
  • 40 per cent less water consumption compared to average per capita usage;
  • 40 per cent reduction in greenhouse gas emissions compared to average per capita usage; and
  • Minimal thermal performance targets;
  • For multi dwelling developments:
  • 40 per cent less water consumption compared to average per capita usage;
  • 25 per cent reduction in greenhouse gas emissions compared to average per capita usage; and
  • Minimal thermal performance targets;
  • For alterations and additions above $500,000 (or for a pool):
  • Specified minimum technologies or processes.

BASIX was mandated for development approval process in NSW by the Environmental Planning & Assessment Regulation 2000 (EP&A Reg). Under the EP&A Reg, a development application must be accompanied by a BASIX Certificate(17), which sets out the commitments the development will make to achieve the Government’s requirements for sustainability (18) (that is the above benchmarks). That is to say, the above benchmarks are not themselves listed in the regulation, but are government policy applied through the provisions of cl.164A of the EP&A Reg.

The BASIX Certificate can employ a number of options such as rainwater tanks, insulation, natural lighting and natural plants to achieve the benchmarks.

Once development consent is granted, the BASIX Certificate must be attached to the application for a construction certificate (19) before building work can start. When complete, the building cannot be occupied until the certifying authority is satisfied that the commitments in the BASIX Certificate have been fulfilled (20).

Planning and coastal development

State Government Coastal Policy – State Environmental Planning Policy No. 71 – Coastal Protection (21)

The Coastal Protection SEPP commenced on 1 November 2002 under the Environmental Planning and Assessment Act 1979, with stated aims to ensure development around the NSW coastal zone is done in a sustainable way, to maintain a consistent and strategic approach to coastal planning and management and to develop a clear assessment framework for the

Coastal Zone (22). The SEPP provides for the protection of certain coastal elements such as beach environments, native coastal vegetation and Aboriginal cultural heritage. The Policy also identifies State significant development and places extra requirements on certain applications in sensitive coastal locations (such as requiring comment from the Director-General).

Coastal Protection Bill

At the time of writing, the NSW Government has introduced the Coastal Protection and Other Legislation Amendment Bill 2010 (Coastal Bill) which seeks to improve the management of erosion along the NSW coast by outlining processes to allow landowners to protect their properties from erosion, both during storm activity and in the longer term.

The Coastal Bill permits beachfront landowners to position sand, sandbags or other objects (other than rocks, concrete, construction waste or debris) on beaches to reduce the impact of coastal erosion to their property for six months without the need for development consent, provided that a certificate is first obtained from council or the Director-General of the Department of Environment, Climate Change and Water, and the material is placed:

  • by or on behalf of the landowner or occupier to protect a lawfully erected building or land from damage due to erosion;
  • in accordance with any emergency action subplan that applies to the land concerned;
  • and maintained in a manner that complies with the requirements adopted by the Minister and published in the Gazette; and
  • and maintained in a manner that complies with the requirements specified in the regulations under the Coastal Protection Act.

Also, a person may use or occupy public land for the purpose of placing and maintaining temporary coastal protection works without obtaining a lease, licence or permit – however a certificate must be obtained to use and occupy the public land.

Works positioned for more than six months (which will require development approval) include activities and works such as sea walls, revetments, groynes and beach nourishment. Under the Coastal Bill, any development approval granted under the Environmental Planning and Assessment Act (EP&A Act) for long term works which are constructed by or on behalf of landowners or by landowners jointly with a council or a public authority, must include satisfactory financial and legal arrangements for maintenance and managing any off-site impacts for the life of the works.

The Coastal Bill also proposes amendments to the Local Government Act to allow councils to charge a levy to landowners that benefit from long-term coastal protection works provided by councils. Under the Bill, an annual charge in relation to any coastal protection services will only apply to works which existed after the commencement of the amendments. Furthermore, the coastal protection service charge will not apply where:

  • the maintenance of the works or the management of the impacts of the works is a condition of an approval under the EP&A Act; and
  • that maintenance or management works is not being carried out by or on behalf of the council.

Under the Coastal Bill, the “Coastal Authority” may make orders to remove materials or structures from the beach as well as the power to make stop work orders to prohibit an activity on a beach where the Coastal Authority is of the opinion that such activity will affect or is likely to:

  • affect beach erosion;
  • limit public access to a beach or headland; or
  • pose a threat to public safety.

The “Coastal Authority” is identified as:

  • the Minister administering the Coastal Protection Act or the Crowns Land Act 1989;
  • a council whose area is included within the coastal zone or whose area includes land that adjoins the Hawkesbury River, Sydney harbour and Botany Bay;
  • a roads authority for a road within the coastal zone or on land that adjoins the Hawkesbury River, Sydney harbour and Botany Bay; or
  • a public authority that is the owner of, or has the care, control or management of, land within the coastal zone land that adjoins the Hawkesbury River, Sydney harbour and Botany Bay.

It will be an offence to fail to comply with an order issued under Part 4 with a maximum penalty of $495,000 and an additional $44,000 for each day the offence continues in the case of a corporation, or $247,000 and $22,000 for each day the offence continues in any other circumstance.

Planning instruments and development consents

Many Local planning instruments have measures to address coastal impacts, which for the most part preceded the publication of the Commonwealth Coastal Report. Many of these are found within development control plans, rather than local environmental plans. Similarly conditions of development consent will often impose conditions addressing sustainability issues including climate change impacts.

Measures adopted include:

  • prohibitions on new development within specified costal zones;
  • building sitting requirements;
  • engineering certification of structural and functional adequacy of protective measures;
  • soil erosion minimisation measures; and
  • the use of restrictive and/or positive covenants on title to restrict development.

BASIX

Much of local planning is complemented by BASIX which has been summarised above. State Environmental Planning Policy—Building Sustainability Index (BASIX) 2004 prevents any other planning instrument from imposing different standards on water, energy and thermal performance in housing.

Cases involving climate change and planning law

The CUB Case (Drake-Brockman v Minister for Planning & Anor (2007)) involved an unsuccessful challenge to a Ministerial approval for apartment redevelopment of the former Carlton United Brewery site in Camperdown Sydney, on the basis that insufficient information had been provided as to the GHG emissions connected with the redevelopment of the site, and the failure to consider any alternatives to reduce climate change impacts.

In 2007-9, the Walker Case (23) (Walker v Minister for Planning and Anor) saw a successful challenge (at first instance anyway) to an approval for a residential development based on a failure by the Minister to consider the flood impacts occasioned by climate change upon development in a flood risk area (the shores of the Illawarra region north of Wollongong).

Walker was overturned in the Court of Appeal (and an application for leave to appeal to the High court was refused). The Court of Appeal essentially ruled that the obligation to consider Ecologically Sustainable Development (and by implication climate change impacts) was not a mandatory relevant consideration for the Minister to address when determining a planning application.

Whatever the outcome of these sorts of cases, climate change, sustainability and principles of ESD remain a head of consideration in any planning application.

Rating tools

National Australian Built Environment Rating System – NABERS24

Initially developed by the former Federal Department of Environment and Heritage, NABERS is now being commercialised under licence by the NSW Department of Environment Climate Change and Water (DECCW).

Similar to BASIX, NABERS looks at the operational impacts that a building may have on energy, waste, water and the indoor environment. However, NABERS extends beyond BASIX to include commercial buildings and to measure ongoing performance of a building, but the two approaches, as well as NatHERS, are used to complement each other.

NABERS ratings for energy and water consumption apply to the following types of homes:

  • Detached dwellings;
  • Townhouses;
  • Duplexes;
  • Villas;
  • Terraces; and
  • Semi-detached dwellings.

It is not applicable to apartments as yet.

The NABERS Home rating provides a star rating of 1-5 stars (poor to top performance). While the rating is important to the owner, property developer or stakeholder of the building, it is also useful for councils, planning authorities and utility providers for assessing the environmental impact and helping
to establish incentives to encourage better sustainability

Precinx

Precinx is a new mathematical tool developed by Landcom that analyses sustainability performance in the planning of neighbourhood-scale developments against key criteria such as environmental, social and economic data; it even goes so far as to include the weekly cost of housing and travelling times as part of its assessment.

The tool differs to BASIX in that it is more focused on larger scale projects (rather than individual houses), as it helps in understanding supporting infrastructure requirements and sustainability for an entire neighbourhood.

Major components of the analysis by Precinx include the accessibility to onsite energy, embodied carbon, potable water, stormwater, housing diversity and transport. These are then used to establish four key performance indicators; greenhouse gases; potable water; total affordability; and vehicle hours travelled. The tool has already been used in strategic planning for some sites, including for example the Rouse Hill Town Centre.

Precinx is yet to be launched nationally, as it is currently concentrated on NSW based data. By using such a tool, the affordability of power and energy saving is a big consideration to ensure that sustainability is achievable for more new households.

Disclosure obligations at sale

There are no mandatory disclosure regulations in NSW at the moment.

Rebates

The NSW government (25) offers the following rebates and incentives for implementing green technology at the home:

Home energy and water rebates

Eligible items such as water tanks, rated washing machines, rated toilet suites and hot water circulators must be installed prior to applying for rebates, which range from $150 to $1500 depending on the type of item installed and the way it is connected to the energy or water supply of the house.

These rebates are offered by way of funding contributed by the NSW Climate Change Fund26, which is part of the NSW Government’s Energy Efficiency Strategy.

Low Income Household Refit Program

Also offered under the NSW Climate Change Fund is the Low Income Household Refit Program for lower income households, which offers a free home energy assessment which is designed to show how households can reduce their energy use, without going to great expense. This assessment is further supplemented by the provision of a ‘power saving kit’, aimed at reducing the average NSW yearly household power bill of $1500 by 20 per cent.

Energy Savings Scheme
The Energy Savings Scheme commenced on 1 July 2009 and creates a market for Energy Savings Certificates (ESCs). ESCs can only be created by Accredited Certificate Providers (ACPs) in relation to Recognised Energy Savings Activities (RESAs).

Examples of RESAs in the housing sector for which the number of ESCs may be calculated (27) include:

  • replacement of halogen down-lights with energy efficient alternatives;
  • sale or purchase of energy efficient clothes washers, dishwashers, fridges or freezers
  • retirement of old spare fridges and freezers; and
  • installation of low flow shower roses.

The value of ESCs operate as an additional incentive to carry out more (and other) types of Recognised Energy Savings Activities.

Feed in tariffs

As of 1 January 2010, the NSW Climate Change Fund is offering households and businesses that install renewable energy systems (such as eligible solar or wind power resources), a gross feed in tariff for the electricity those systems generate. This tariff is fixed for the life of the scheme, being seven years from its introduction, and stands at 60c/kW. The tariff has been established under the Electricity Supply Amendment (Solar Bonus Scheme) Act 2009 and (subject to a few exceptions) requires that a consumer must have gross metering in place to receive the credit.

3.Queensland Schemes

Energy and water standards

Development Code

The requirements imposed on Queensland households are determined by the BCA and Queensland Development Code (the Code), which is given power by the Building Act 1975. The BCA, as discussed earlier, is a national instrument which sets technical building standards but also has Queensland specific requirements. However, these Queensland requirements are increasing and so it becomes inappropriate for them to be lumped in with national standards; this is where the Code comes in.

Part 4.1 focuses on ‘Sustainable Buildings’ and the standards of water and energy efficiency. One of the major reshuffles of the Code is that it now requires 80 per cent of a residential dwelling’s gross floor space to be fitted with energy efficient light globes (internally). This percentage is based on how lights there are within the house.

The Code is also due to undergo even further reform from 1 May 2010 to provide for a 6 star energy rating (taking into account tropical and sub-tropical climate zones) for all new houses, townhouses, renovations and major developments. This system is also due to be adopted under the BCA (as noted earlier), but Queensland is one of the first states to agree to its implementation at the same time as its national enforcement. All other states are due to comply under the COAG Agreement by 2011.

Also applying to all new houses, townhouses, renovations and major developments are new water efficiency standards. Amendments to the Code require that such dwellings have a minimum 4-star Water Efficiency Labelling and Standards (WELS) scheme rated toilets, as well as 3-star WELS rated tapware for kitchens, basins and laundry troughs. Such water standards are further supplemented by the Queensland Plumbing and Wastewater Code (QPW Code). The amendments cover replacement of hot water systems, in that they must be replaced by one that has low greenhouse gas emissions. New requirements also cover installations and replacements of irrigation systems, enforcing further efficiency (28).

Planning and coastal development

Draft Coastal Plan 2009

To help manage and protect Queensland’s coastline, the state government developed the Draft Coastal Plan 2009 (DCP) to give greater certainty about dealing with coastal hazards, while managing population and development pressure. Part of the DCP also deals with issues raised in the State Coastal Management Plan – Queensland Coastal Policy 2001.

The Coastal Protection and Management Act 1995 provides that the DCP must manage and protect Queensland’s coastal zones. While the DCP does address many issues, those that are already sufficiently covered by current legislation are not referenced.

A number of determining factors have been established when looking at development in different coastal zones, such as whether the overall social, economic and environmental benefits of the development outweigh any detrimental effect on natural values. The DCP also gives minimum requirements according to the type of development, and in some instances, places operational standards on infrastructure after a specific natural event like a storm to ensure that the development is sustainable and ‘climate change ready’ (29).

Planning controls

The Sustainable Planning Regulation 2009 now allow councils to completely manage approvals for houses and duplexes, so that no other separate council approvals will be needed. The Regulation only requires a building application for houses, and, if councils opt in, for duplexes (30).

Rating tools

EnviroDevelopment (31)

While EnviroDevelopment is intended to apply across all Australia, it has been developed by the Queensland division of the Urban Development Institute of Australia (UDIA). The UDIA launched EnviroDevelopment on 11 October 2006 – an incentives based certification and branding scheme. With its focus on estate development, it is similar to Precinx in that it aims to encourage sustainable outcomes in new developments by offering certification in one or all of six areas:

  • ecosystems – protected and enhanced health and sustainability of natural systems and the encouragement of native biodiversity and rehabilitation of degraded sites;
  • water – improved water use through water efficiency mechanisms and / or source substitution such as rainwater and stormwater harvesting;
  • energy – reduced production of greenhouse gases and reduced use of fossil fuels, achieved through greater efficiencies in energy usage and use of renewable and non- polluting energy sources such as solar power;
  • waste – comprehensive waste management procedures and practices to reduce the amount of waste to landfill;
  • materials- environmentally responsible material usage including reuse of materials, recycled materials and consideration of the life cycle environmental costs of materials; and;
  • community – vibrant, cohesive, sustainable communities with good community design; the provision of community facilities and networks; safe, accessible housing and options for the reduced use of private motor vehicles.

A new development is able to receive an EnviroDevelopment certification, enabling prospective home buyers to be better informed about the impact of a new development. It also helps to bring to the attention of buyers any rebates or assistance they may be eligible for by purchasing a particular type of energy efficient home, as well as reducing general household operating costs.

EnviroDevelopment differs itself from other sustainability tools by aiming itself at developers, observing factors that are determined at the conceptual stages of a development through to the final fit-out. Developers are required to submit certain information to attain a certification in relation to each of the different factors outlined above so that homebuyers can specifically see which areas the development excels in so they can make an informed decision.

No information is available to ay how much the EnviroDevelopment tool has been taken up. It is entirely voluntary.

Disclosure obligations at sale

From 1 January 2010 under the Building Act 1975, an extensive checklist must be filled out to determine energy, water, access and safety features of the building. This checklist will need to be provided to the agent listing the property before any advertising material can be published about the property. There are also penalties for falsely completing the declaration, as well as compensation to buyers who rely on such misleading statements.

Rebates

Home energy and water assessments and incentives

The Queensland Government’s ClimateSmart Home Service (32), offered as part of the state government’s strategy to reduce residential energy and water usage, aims to lessen the carbon footprint of households by up to 20.4 tonnes of greenhouse gas emissions per residence, per year. The service involves a qualified electrician conducting an energy audit and providing a range of products such as an installed wireless energy monitor; free water and energy efficient showerhead; and a customized energy and water efficiency plan. The cost of the service is covered by Brisbane City Council (after application by the homeowner for a refund) but also has certain requirements that effect eligibility to apply for the service.

Feed in tariffs

Electricity feed-in tariff

The Queensland Solar Bonus Scheme, under the Electricity Act 1994, aims to help by paying households for surplus electricity fed back into the grid by way of solar power renewable energy systems. There are a number of requirements to be met to be eligible to receive the net tariff, such as consuming less than 100 Megawatt hour of electricity per year and having appropriate metering installed pursuant to an agreement with the electricity provider, but all homeowners, landlords and tenants are able to apply. The calculation occurs at the end of every quarter.

4.Victorian Schemes

Energy and water standards

Mandated 5 star FirstRate

The 5 star rating system requires a particular environmental standard for all new housing and renovations or relocations in order to deal with the impacts of climate change. This scheme aims to bring Victoria up to the standard of the BCA in terms of energy and water efficiency.

From 1 July 2005, all new housing was required to adhere to the 5 star rating but on 1 May 2008, this was extended to existing home renovations and relocations as it was recognised that existing dwellings accounted for 95 per cent of all housing in Victoria. However, it is expected that within five years of its introduction, the scheme will allow for up to $40 million in energy savings.

The standard itself is meant to be more flexible than prescriptive, allowing for a combination of different energy and water saving techniques to be used. Additionally, at the discretion of the building surveyor (33), partial compliance is an option for renovations and relocations where the burden is overly onerous, impractical or the cost far outweighs the benefit.

Planning and coastal development

Coastal development in Victoria is largely governed by the Victorian State Planning Policy Framework and the Coastal Management Act 1995. Clause 15.08 of the State Planning Policy Framework requires:

  • land use and development planning in coastal areas to be coordinated with the requirements of the Coastal Management Act 1995; and
  • planning authorities and responsible authorities to apply the “hierarchy of principles” set out in the Victorian Coastal Strategy 2008 to manage coastal hazards and the coastal impacts of climate change.

The hierarchy of principles is:

1.Provide for the protection of significant cultural and environmental values.
2.Undertake integrated planning and provide clear direction for the future.
3.Ensure the sustainable use of natural coastal resources.
4.Ensure suitable development on the coast.

The general requirements for managing coastal hazards and the coastal impacts of climate change are set out in Direction No 13 (issued on 18 Dec 2008) and further general guidance is contained in an accompanying General Practice Note issued at the same time.

For some development proposals, a Coastal Hazard Vulnerability Assessment is required to be prepared however this is not always the case.

The need to resolve the lack of clarity as to when such assessments were required was just one of many recommendations (for improvements to the Victorian Planning Regime) contained in the Issues and Options Paper prepared by the Coastal Climate Change Advisory Committee in February 2010. While the completion of the broader Victorian Coastline Vulnerability Assessment by the Victorian Government’s Future Coasts Program (which is part of the Victorian Climate Change Adaptation Program) will assist this process, further legislative improvements are still required.

Cases involving climate change and planning law

Victoria has also seen many cases involving the impacts of climate change on coastal development.

The Gippsland Case (34) was concerned with climate change effects on the proposal, rather than a failure to consider climate change in the process of decision making. As one reason for refusing planning approval for 6 houses on the Victorian coast, the VCAT expressed the view that CSIRO studies undertaken on behalf of Gippsland Coastal Board showed that climate change effects were going to be too significant to the area for allow for that kind of development (or any). This particular consideration is accounted for in s.60(1)(e) of the Planning and Environment Act 1987.

While the area surrounding the proposal site was largely zoned for farming, it was low-lying, subject to flooding and at risk from inundation from rising sea levels and coastal erosion (among other climate change related events). The planning policy and legislation referred to by the Tribunal greatly deterred any permit grant, even if the landowners viewed the zone shifting from that of farming to residential.

The Tribunal further reasoned that while the effect of climate change is still an “evolutionary process”, mere “scientific uncertainty” about future impacts is no reason to just “postpone measures to prevent environmental degradation”.

In Myers v South Gippsland SC (No.2) (35) a development proposal was originally refused because of the non-submission of a coastal hazard vulnerability assessment. However, once submitted, the Tribunal found that the current policy platform required a precautionary approach and without any works being done in the area to combat the potential effects of climate change, it would be poor planning to allow such a development.

The development itself sought to subdivide land into two lots. The final submission found that by 2100 without any mitigation works, the area would have no foreshore access, no road and the site would be subject to being inundated with sea water and therefore completely inappropriate for residential development.

On 25 February 2010, Planning Minister Justin Madden and Environment and Climate Change Minister Gavin Jennings announced the refusal of a development on East Beach, Port Fairy, while simultaneously declaring a $1 million fund to better help all Victorian coastal communities to deal with climate change. The development was for residential subdivision to create 22 lots on sand dunes at East Beach, 300 kilometres west of Melbourne in the Moyne Shire Council. Mr Madden also went to the extent of suggesting that the land should be rezoned to prevent inappropriate future development; advice which the Minister for Planning is seeking to act upon.

In refusing the development, Mr Madden said that Victoria’s coastal development is looked at in terms of overall impact, not just per development. The refusal, in this case, was based on the proposal “being inconsistent with existing planning and coastal policies and because the site is vulnerable to coastal erosion and flooding from the sea from the nearby Moyne River”. An investigation into the possible effects of the development was performed by the Planning Panel and Advisory Committee which also led to the refusal. The main concerns were that the properties backed onto the Moyne River which could be subject to flooding, while the other side fronted the ocean with possible vulnerability to erosion.

The $1 million fund announced alongside the refusal will be used to fund study about how wind and waves move sand and vegetation along beaches, and the changes that are anticipated as a result. The purpose of this fund is to help in assessing future developments, by “guiding practical planning decisions for different areas, taking into account the diversity of communities, natural environments and organisations responsible for planning and managing the coastal area”.

Rating tools

FirstRate 5

As mentioned earlier, FirstRate 5 is Victoria’s main method for rating the energy efficiency of residential housing and is closely aligned with AccuRate. The program develops AccuRate further by utilising the same calculation method but being able to zone each part of a house according to the purpose of that room.

FirstRate5 includes all Victorian climate zones which are then used to compare the house including materials used in construction, floor areas and window types. The rating given is up to 10 stars, similar to NatHERS (36).

Disclosure obligations at sale

It is expected that Victoria will introduce similar standards to the ACT in May 2011.

Rebates

Victorian Energy Efficiency Target (VEET)/Energy Saver The VEET Scheme, was established under the Victorian Energy Efficiency Target Act 2007. The foundation of the scheme is an annual Victorian GHG reduction target of 2.7 million tonnes of GHG for each of the years between 2009 and 2011 (and is to be prescribed by the regulations thereafter). It then sets up a supply and demand system to facilitate energy reduction.

The VEET Scheme seeks to make the providers of energy to residential occupants accountable for their contribution to greenhouse gas emissions. Though the scheme is not directly aimed at residents, it works in conjunction with those rebates and assistance packages offered to households to further decrease the state’s carbon footprint.

The Scheme requires relevant entities (electricity or gas retailers with 5000 or more customers who make a “scheme acquisition”) (37) to buy Victorian energy efficiency certificates (VEECs) from people accredited by the Essential Services Commission (ESC) and surrender to the ESC between 1 January and 30 April each year.

Any person accredited by the ESC can create VEEC’s. Anybody can apply for accreditation, including:

  • home owners and tenants;
  • vendors of efficient appliances; and
  • developers.

The following sorts of activities may give rise to a right to create a certificate, provided they are undertaken after the VEET Act took effect on 1 May 2008:

  • modifying or replacing appliances, structures or equipment so as to reduce
    electricity or gas consumption – including energy efficient lighting, and appliances;
  • purchasing or installing appliances with high energy efficiency ratings – dishwashers, fridges etc;
  • switching to less greenhouse intensive fuels – for example, gas in place of electricity; and
  • building shell improvements – for example, window treatments or insulation.

As a result, a developer who exceeds legislative requirements in housing development by, say, installing energy efficient appliances, should look to see if it can create certificates to on sell to energy retailers.

A failure to buy adequate certificates will result in a shortfall penalty of $40 per VEEC (38).

Gas hot water rebate

Under the Victorian Sustainability Fund (39), established under the Environmental Protection Act 1970, eligible households who replace their wood-fired or electric hot water system with a natural gas hot water system are able to receive up to $400 (or $700 if a pensioner). Additional rebates of up to $300 are also available to help cover installation. As with other rebates, certain requirements are to be met such as installation being at the principal place of residence and not having a second, off-peak water system already installed.

Home and garden water rebates

The Water (Victorian Water Trust Advisory Council) Act 2003 established the Victorian Water Trust (40) who, under the ‘Our Water, Our Future’ program, created the Water Smart Gardens and Homes Rebate Scheme, allowing for a rebate of up to $1000 for households who replace current appliances with energy saving water tanks, dual flush toilets and the like. An additional $50 rebate is also available to help with the cost of a home audit which aids in identifying possible replacements that are needed. Notably, new houses that receive a building certificate after 30 June 2005 are not eligible for this scheme and the close of the rebate occurs on 30 June 2011 for those wishing to claim.

Home appliance rebate and assistance

Another initiative of the Victorian Sustainability Fund, the Whitegoods Appliance Rebate of $100 is available for concession card holders to help them purchase more energy efficient whitegoods for their homes. In addition to being a concession card holder, the applicant must be successful in obtain a No Interest Loan (NIL), Progress Loan or use the Good Shepherd Buying Service to purchase the appliance(s). Minimum standards of a 3.5 star energy ratings and 4 star water ratings for washing machines and a 4 star ratings for fridges apply.

Hot water assessment and incentives

Water Wise is a concession-based program monitored by the Department of Human Services (41), who help to administer, amongst others, the State Concessions Act 2004 and the Water Act 1989. These specific pieces of legislation allow eligible concession card holders to receive up to $500 worth of plumbing repairs, replacement fittings and new water saving products. As part of this scheme, a free home assessment is also conducted to determine water usage and how it can be reduced. There are a number of items that can be updated, including faulty washers, flow control valves and installation of an energy efficient showerhead.

Showerhead exchange

Also on offer by the state government as part of the ‘Our Water, Our Future’ program, are free 3 star showerheads in exchange for old showerheads; there is no limit on how many any one household may receive. To be eligible, a household must have an account with a Victorian water retailer and register online to take part in the swap.

Solar hot water rebate

The Victorian Sustainability Fund is also giving point of sale discounts of up to $1500 for homes in metropolitan Melbourne and up to $1600 for those in regional Victoria for replacing or improving their existing hot water system with solar. The system must be installed at a principal place of residence and, for existing homes, water must have been in use at the address for at least 12 months. Notably, eligibility also depends on whether the applicant is unable to obtain assistance through the Australian Government’s Renewable Energy Bonus Scheme (solar hot water rebate component) as there may be a double up of claims. Note: developers are also able to claim these rebates as part of the building contract.

Feed in tariffs

The Victorian Feed-in Tariff Scheme is administered by the Department of Primary Industries (42), with the Scheme being established under the Electricity Industry Amendment (Premium Solar Feed-in Tariff) Act 2009. The Scheme aims to help by paying households for unused surplus electricity fed back into the grid by way of solar power renewable energy systems. There are two different types of tariffs; the first is for small scale solar power systems and the second is for larger wind, hydro and biomass renewable energy systems. There are a number of requirements to be met to be eligible for this scheme such as metering, level of consumption and connections.

Footnotes

1 .    Department of Climate Change, 2009, Tracking to Kyoto and 2020, August 2009: Australia’s Greenhouse Emissions Trends 1990 to 2008-12 and 2020, DCC, Canberra, ACT, p.7.
2 .    Calculated from the Department of Climate Change, 2007, Australian National Greenhouse Accounts – National Inventory by Economic Sector, DCC, Canberra, ACT, as follows:
scope 1 (direct) emissions     54.3MTCO2-e
scope 2 (indirect) emissions      51.3MTCO2-e  (essentially household energy uses)
total emissions        105.6MTCO2-e
= 17.6% of Australia’s overall output of 597.2MTCO2-e.
3 .    Department of Climate Change 2009, Climate Change Risks to Australia’s Coast – First Pass National Assessment, DCC, Canberra, ACT, p.6.

Emma Fleming

4 .    Dept of Environment Climate Change and Water “Black Balloons” Campaign,  https://savepower.nsw.gov.au/
5 .    Qld Government 2009, Toward Q2: Tomorrow’s Queensland, p.23 https://annaforqueensland.com/library/pdf/tomorrow/Towards_Q2_Tomorrows_Queensland.pdf
6 .    Sustainability Victoria “Black Balloons” Campaign, https://www.saveenergy.vic.gov.au/blackballoons.aspx
7 .    National Greenhouse and Energy Reporting Act 2007
8 .    https://www.climatechange.gov.au/publications/coastline/climate-change-risks-to-australias-coasts.aspx
9 .    https://www.nathers.gov.au/index.html.
10 .    https://www.nathers.gov.au/software/accreditation.html#protocol

Peter Hawkes

11.    https://www.csiro.au/science/AccuRate.html
12     Joint media release by Prime Minister Rudd and Minister Garrett 2 July 2009: https://www.environment.gov.au/minister/garrett/2009/mr20090702b.html
13.    https://www.nathers.gov.au/about/publications/pubs/eer-house-price-act.pdf.
14.    https://www.livinggreener.gov.au/
15.    https://www.climatechange.gov.au/government/initiatives/aust-carbon-trust.aspx
16.    Chaired by Mr Robert Hill, the former Defence Minister under the Howard Government, with the Board appointed on 24 March 2010.
17 .    EP&A Reg, cl.50.

Alice Spizzo

18.    EP&A Reg, cl.164A.
19.    EP&A Reg, cl.139.
20 .    EP&A Reg, cl.154B.
21.    https://www.legislation.nsw.gov.au/fullhtml/inforce/epi+816+2002+cd+0+N
22.    https://www.planning.nsw.gov.au/PlansforAction/Coastalprotection/tabid/166/language/en-AU/Default.aspx
23.    [2008] NSWCA 224
24.    https://www.nabers.com.au/
25.    https://savepower.nsw.gov.au/
26.    https://www.environment.nsw.gov.au/grants/ccfund.htm
27.     according to the Default Savings Factors Method of the Energy Savings Scheme Rule 2009
28     For more information on the Queensland Development Code, visit https://www.dip.qld.gov.au/index.php?option=com_content&task=view&id=152&Itemid=240.

Natasha Gowdie

For more information on the Queensland Plumbing and Wastewater Code, visit https://www.dip.qld.gov.au/resources/laws/plumbing/current/qpw-code-update-without-blackwater-trails-web.pdf.
29      For more information on the DCP, visit https://www.derm.qld.gov.au/coastalplan/.
30     To find out more information, visit https://www.dip.qld.gov.au/development-applications/index.php.
31.    https://www.envirodevelopment.com.au/default.asp
32     https://www.climatesmarthome.com/
33       Building Regulations 2006 (Vic), Reg 608. See https://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/7e27929611f1d5c2ca256dac00186f32/ace66ccc7bc17dedca257186001a6b62/$FILE/06-68sr001.pdf
34.    Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545
35 .    [2009] VCAT 2414
36      For more information, visit https://www.sustainability.vic.gov.au/www/html/1491-energy-rating-with-firstrate.asp
37 .    A wholesale purchase of electricity or gas for retail sale.
38      For more information on the scheme, visit https://www.esc.vic.gov.au/public/VEET/.
39      https://www.sustainability.vic.gov.au/www/html/1517-home-page.asp
40      https://www.ourwater.vic.gov.au/programs/victorian-water-trust
41     https://www.dhs.vic.gov.au/concessions/entitlements/water/waterwise
42     https://new.dpi.vic.gov.au/energy/energy-policy/greenhouse-challenge/feed-in-tariffs

This article was produced by Herbert Geer.  It is intended to provide general information in summary form on legal issues.  The content does not constitute legal advice and should not be relied upon as such.

“Liability limited by a scheme approved under Professional Standards Legislation”