“12. Achievement of carbon emissions reduction obligation (1) A supplier must achieve its total carbon emissions reduction obligation by no later than30 September 2018 . (2) A supplier must – (a) achieve its total carbon emissions reduction obligation by promoting carbon qualifying actions … […] (3) A carbon qualifying action is the installation, at domestic premises, of a measure which is – (a) a primary measure or, subject to paragraph (4), a secondary measure; (b) installed on or after1st April 2015 and in accordance with the Publicly Available Specification, where the installation is referred to in the Specification …” (a) achieve its total carbon emissions reduction obligation by promoting carbon qualifying actions … (a) a primary measure or, subject to paragraph (4), a secondary measure; (b) installed on or after1st April 2015 and in accordance with the Publicly Available Specification, where the installation is referred to in the Specification …”
“B9 Measure BFM.9 Loft Insulation B9.1 Additional installation requirements When installing loft insulation, in addition to meeting the core requirements set out in Clauses 4 to 7 of this PAS, the installer shall also work to any standards, specifications, instructions or guidance identified in B9-I1 of Table B9. […] B9-I1 – Additional installation requirements to those in the core of this PAS (Clauses 4-7) As required in Clause 4.4, the methods used for the installation of loft insulation products or systems shall be as specified by the supplier, where provided. Where relevant to the type of installation being undertaken, the requirements or guidance given in “General requirements and guidance for the installation of cold roof loft insulation (see 8.7).”
“8.7 CITB General requirements and guidance for the installation of cold roof loft insulation”
“2: General requirements and guidance 2.1 All installers contracted to perform loft insulation works shall: […] (f) ensure that all legal and statutory obligations, in relation to the work, are met. […] 3: Materials and Products […] 3.2 Approval All materials and products used shall be approved by the relevant authority and covered by the relevant industry standards (BS or EN, where available) or UKAS-accredited third party certification. 3.3 Suitable materials and products for loft insulation (informative) The following list is non-exclusive, other materials and systems may be used if they comply with clauses 3.1 and 3.2. The industry standards governing these materials are listed in Appendix 2: Index of Industry Standards. (Please refer to the manufacturer’s website for specific data sheets). - Mineral wool rolls and slabs - Blown mineral fibre granules or pellets - Blown cellulose fibre - Wool-based batts - Spray applied rigid closed-cell polyurethane (PUR) insulation - Rigid foam board - Pipe and tank insulation […] 4: Scope and extent 4.1 Coverage The insulation works shall cover the entire loft space, including all tanks and pipes, unless there is a compelling reason, which must be documented (see clause 5.7.6) […] 5.4 Insulation and draught-proofing of loft hatches 5.4.1 Required level of insulation The loft hatch cover shall be completely insulated, as far as practical, to at least the same U-Value degree as the rest of the roof space. As a minimum, the requirements of the current building regulations/standards shall apply. 5.4.2 Suitable methods of insulating and draught-proofing Loft hatches Loft hatches should be insulated and draught-proofed in accordance with the insulation material’s specifications or manufacturer’s instructions. 5.4.3 Special requirement for blown fibrous materials In the case of blown fibrous materials, a suitable barrier shall be provided around the loft hatch to ensure that the insulating material does not ingress into the dwelling when the loft hatch cover is opened (in line with applicable industry standards).”
“Standards relating to the installation of ECO measures 2.27. Suppliers should ensure that the installation of a measure is carried out in accordance with the relevant standards. How this is demonstrated will vary depending on whether or not the measure is referred to in the Publicly Available Specification 2030:2014 Edition 1 (“PAS”). 2.28. If a measure is referred to in PAS, the installation of the measure must be carried out in accordance with the provisions of PAS, building regulations and any other regulations that relate to the installation of the measure. 2.29. If a measure is not referred to in PAS, the installation of that measure must be carried out in accordance with building regulations and any other regulations that relate to the installation of the measure. Demonstrating compliance with PAS 2.30. Compliance with the provisions of PAS can be demonstrated where the installation is carried out by a PAS-certified installer. Installers can be certified by independent third parties according to the requirements of Publicly Available Specification 2031:2015. 2.31. Suppliers should contact us directly to discuss alternative methods for demonstrating compliance with PAS if the installation is not carried out by a certified installer. Should a supplier use an alternative method, we may also require additional monitoring.”
“Percentage of a measure that must be installed 2.38. Suppliers must install 100% of a measure at premises, unless there are reasonable grounds for not doing so. 2.39. For clarity, below are some examples of what constitutes 100% of a measure for different measure types: (a) for loft insulation, 100% of the measure will be the insulation of the entire loft, including the hatch […] 2.40. Some examples of what we consider reasonable grounds for installing less than 100% of a measure include planning restrictions, inability to gain access to necessary work areas, or lack of consent from the occupant or landlord of the premises.”
“2(3) In these Regulations “thermal element” means a wall, floor or roof (but does not include windows, doors, roof windows or roof-lights) which separates a thermally conditioned part of the building (“the conditioned space”) from – (a) the external environment (including the ground); or (b) in the case of floors and walls, another part of the building which is – (i) unconditioned; (ii) an extension falling within class 7 of Schedule 2; or (iii) where this paragraph applies, conditioned to a different temperature, and includes all parts of the element between the surface bounding the conditioned space and the external environment or other part of the building as the case may be.”
“Conservation of fuel and power L1. Reasonable provision shall be made for the conservation of fuel and power in buildings by – (a) limiting heat gains and losses – (i) through thermal elements and other part of the building fabric …” (a) the external environment (including the ground); or (b) in the case of floors and walls, another part of the building which is – (i) unconditioned; (ii) an extension falling within class 7 of Schedule 2; or (iii) where this paragraph applies, conditioned to a different temperature, (a) limiting heat gains and losses – (i) through thermal elements and other part of the building fabric …”
“1.2. The intention of issuing Approved Documents is to provide guidance about compliance with specific aspects of building regulations in some of the more common building situations. They set out what, in ordinary circumstances, may be accepted as reasonable provision for compliance with the relevant requirement(s) of building regulations to which they refer. 1.3. If guidance in an Approved Document is followed there will be a presumption of compliance with the requirement(s) covered by the guidance. However, this presumption can be overturned, so simply following guidance does not guarantee compliance; for example, if the particular case is unusual in some way, then “normal” guidance may not be applicable. It is also important to note that there may well be other ways of achieving compliance with the requirements. There is therefore no obligation to adopt any particular solution contained in this Approved Document if you would prefer to meet the relevant requirement in some other way. Persons intending to carry out building work should always check with their building control body, either the local authority or an approved inspector, that their proposals comply with building regulations.” (author’s emphasis) The relevant part of the Approved Document which deals with thermal elements provides as follows: “The Provision of Thermal Elements U-values 5.2. U-values shall be calculated using the methods and conventions set out in BR 443. 5.3. Reasonable provision for newly constructed thermal elements such as those constructed as part of an extension would be to meet the standards set out in Table 2. 5.4. Reasonable provision for those thermal elements constructed as replacements for existing elements would be to meet the standards set out in Table 2. Table 2 Element1 Standard W/(m2K)2 Wall 0.28 Pitched roof – insulation at ceiling level 0.16 Pitched roof – insulation at rafter level 0.18 Flat roof or roof with integral insulation 0.18 Floors 3 0.22 4 Swimming pool basin 0.25 Notes 1. “Roof” includes the roof parts of dormer windows, and “wall” includes the wall parts (cheeks) of dormer windows. 2. Area-weighted average values. 3. A lesser provision may be appropriate where meeting such a standard would result in a reduction of more than 5% in the internal floor area of the room bounded by the wall. 4. A lesser provision may be appropriate where meeting such a standard would create significant problems in relation to adjoining floor levels. The U-value of the floor of an extension can be calculated using the exposed perimeter and floor area of the whole enlarged dwelling. Continuity of insulation and airtightness 5.5. The building fabric should be constructed so that there are no reasonably avoidable thermal bridges in the simulation layers caused by gaps within the various elements, and at the edges of elements such as those around window and door openings. Reasonable provision should also be made to reduce unwanted air leakage through the new envelope parts. The work should comply with all the requirements of Schedule 1, but particular attention should be paid to Parts F and J. 5.6. A suitable approach to showing the requirement has been achieved would be to adopt Accredited Construction Details at www.gov.uk.”
“Proprietary loft hatches with low air permeability characteristics should be fitted in lieu of site manufactured hatches. Where site manufactured hatches are installed these should be complemented with draught stripping to minimise air leakage into the loft space above.”
“10. The major problem (and in my view it is a major problem) with installer self-made products is that they must, and do, leave gaps (thermal bridges) around their entire periphery, as to allow, by not impeding, the opening and closing process of the loft hatch. In the majority of instances as BB products are round cushions they are unable to properly fit into the acute right angled corners of the loft hatch. This means that further gaps must, and do, exist. It is this gap problem that HatchThatch solves as it is able to 100% insulate the loft hatch without leaving any thermal bridges by not impeding the opening and closing process. It is this 100% total insulation ability, which is unique to HatchThatch, which also provided the necessary innovative inventive step that enabled a patent to be granted.”
“26. I have read the Claimant’s grounds of challenge and note that one of the arguments made by the Claimant is that the cushion method does not comply with paragraph 4.1 of the CITB guidance, which states that “insulation works shall cover the entire loft space, including all tanks and pipes, unless there is a compelling reason”
“The problem with this is that draught proofing strips are commonly a few millimetres in depth. I exhibit a print out of a picture of a commonly used draught-proofing strip. This measures 4mm in depth. That contrasts with the minimum 275mm depth of insulation in the rest of the loft. Also, while draught strips provide a physical barrier, unlike insulation materials they are not constructed of material which is specifically designed to prevent heat loss.”
“In my view, however, in respect of the many kinds of “soft laws” with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law. And on such a question of law it necessarily follows that the court does not defer to the minister: the court is bound to decide such a question for itself, paying, of course, close attention to the reasons advanced for the competing interpretations. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular minister may have had in mind.”
“19 That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 , 780, per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
“25 It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome.”
“the insulation works shall cover the entire loft space, including all tanks and pipes, unless there is a compelling reason.”
“Has the loft hatch been insulated as specified in PAS 2030:2014? Has the loft hatch been draught proofed as specified in PAS 2030:2014?”
“all materials and products shall be approved by the relevant authority and covered by the relevant industry standards.”
“The claimant claims: (1) A declaration that OFGEM has acted unlawfully by accepting installations of loft installation which include the bin bag method on insulating the loft hatch as carbon qualifying actions within art.12 of the Order. (2) Mandatory orders that: a. OFGEM must revoke decisions it has taken pursuant to art.25 of the Order to attribute carbon saving to installations of loft insulation which include the bin bag method of insulating the loft hatch and which were formerly considered to be carbon qualifying actions within art.12 of the Order or carbon saving community qualifying actions within art.14 of the Order. b. In relation to such installations, OFGEM must implement §9.33 of its Delivery Guidance (requiring suppliers to ensure that remedial works are carried out if they wish to avoid losing the carbon savings formerly attributed to such installations). c. Where remedial works are not carried out on such installations, OFGEM must re-make decisions it has taken pursuant to art.25 of the Order so as not to attribute carbon savings to such installations. d. When taking the decisions mandated by art.31(1)(a) of the Order, OFGEM must proceed on the basis that installations of loft insulation which include the bin bag method of insulating the loft hatch are not carbon qualifying actions within art.12 of the Order or carbon saving community qualifying actions within art.14 of the Order.” a. OFGEM must revoke decisions it has taken pursuant to art.25 of the Order to attribute carbon saving to installations of loft insulation which include the bin bag method of insulating the loft hatch and which were formerly considered to be carbon qualifying actions within art.12 of the Order or carbon saving community qualifying actions within art.14 of the Order. b. In relation to such installations, OFGEM must implement §9.33 of its Delivery Guidance (requiring suppliers to ensure that remedial works are carried out if they wish to avoid losing the carbon savings formerly attributed to such installations). c. Where remedial works are not carried out on such installations, OFGEM must re-make decisions it has taken pursuant to art.25 of the Order so as not to attribute carbon savings to such installations. d. When taking the decisions mandated by art.31(1)(a) of the Order, OFGEM must proceed on the basis that installations of loft insulation which include the bin bag method of insulating the loft hatch are not carbon qualifying actions within art.12 of the Order or carbon saving community qualifying actions within art.14 of the Order.”
“66. As noted in paragraph 19 above, ECO 2 loft insulation measures have been installed in approximately 100,000 homes at an estimated total cost of around£80m . If the Court were to grant the relief now being sought by the Claimant, energy suppliers would first need to establish in which of these homes the cushion method was used, and this is information that we (and perhaps also the energy suppliers themselves) do not hold. Gaining access to homes for this purpose is likely to be challenging and the cost associated with this number of visits is likely to be high. Assuming that the claimant is correct in its assertions that the cushion method has been used in the majority of cases, then most of those 100,000 homes would be identified as ones for which remedial works were required. 67. Such remedial works would, on the Claimant’s case, require that the existing insulation installed over the loft hatch cover be removed, and that the loft hatch be reinsulated using HatchThatch or an equivalent proprietary product. Energy suppliers would have to commission teams of installers to carry out these works across the country. It is obvious that this would be a major and expensive undertaking. There would also be practical difficulties, such as the need for the installers to arrange access to all these homes, and also the consent of the householders. It may be that not all householders would be willing to facilitate access for carrying out the works (and, indeed, some householders would not be the same people who were living in the house when the original installation took place – that is especially so for rental properties). It is also unclear how each loft hatch could be re-insulated in any physical circumstances where the installer was unable to install HatchThatch effectively.”
“3. Loft insulation was just one of several measures that constitute “qualifying actions” under the ECO 2 regime. British Gas installed 68,000 loft insulation measures that contributed to the delivery of its ECO 2 targets. This figure includes approximately 36,000 actions carried over from the previous ECO period (meaning the number of actions actually carried out in the ECO 2 period were approximately 32,000). In addition, a further approximately 26,000 loft insulation measures that were installed by partners paid by British Gas are contributing to its ECO 2 targets. 4. Loft insulation measures installed by British Gas or its partners resulted in a contribution of 1.446 mtCo2 and£6.7 mLTS towards ECO 2 targets. I estimate that the value of the carbon credits British Gas claimed for the measures (and the validity of which are now being called into question by the Claimant) is£56 million . The validity of our carbon credit claims is also important for British Gas’s compliance with the ECO 2 regime. Because of the significant monetary value, and the importance to British Gas of fulfilling our regulatory obligations, we take compliance with the ECO 2 regime very seriously and took careful steps to comply with Ofgem’s requirements.”