Practical Law

As a Welshman, it’s good to be showing the English the way for once.

For more than 10 years, Westminster has devolved legislative and executive functions to the National Assembly for Wales (NAW) and the Welsh Assembly Government (WAG). To some degree, health, education, transport, housing, local government and environmental protection have all moved into Welsh control. Gradually, Welsh law is emerging in its own right.

Whatever you think of this development, construction is at the forefront of it because of the WAG’s ambitious and impressive sustainability agenda.

Sustainability and planning

Sustainability is a cornerstone of the WAG. Under the Government in Wales Act 2006, the WAG has a statutory duty to promote sustainable development and requires all organisations in Wales to actively commit to sustainable development.

Some time ago, the WAG set a target that all new buildings (including residential) achieve zero carbon emissions by 2011. This is a full five years ahead of the Government’s UK-wide target of 2016 and is being strongly supported through the planning process:

• Since 1 September 2009, all planning applications for non-residential development with a floorspace of 1,000 square metres or more or being carried out on a site having an area of one hectare or more have been required to meet the BREEAM “Very Good” standard and achieve the mandatory credits for “Excellent” under category 1 for reducing carbon emissions.
• All new non-domestic buildings that are WAG-funded must achieve the BREEAM “Excellent” standard or equivalent.
• From 1 September 2010, all planning applications for new homes in Wales (regardless of the size of the development) are expected to meet Level 3 of the Code for Sustainable Homes and obtain at least 6 credits in the reduction of carbon emissions (which means emitting 31% less carbon dioxide than the target set out in the Building Regulations 2010).

Small differences may affect construction contracts

And yet, Site Waste Management Plans (SWMPs) aren’t mandatory in Wales yet. The WAG gives with one hand and takes away with the other…

I see this reflected in contracts. On the one hand, I may insert specific provisions into standard forms and bespoke contracts alike to ensure compliance with the high standards set by the zero carbon agenda. But, on the other hand, I may delete specific SWMP obligations that must be included in England.

Why is this a big issue?

Obviously because, being Welsh, it’s great to be able to assert our own identity and show that, in matters of sustainability, we’re ahead of the game. But more than that, there are jurisdictional issues emerging.

The WAG can implement primary legislation on particular matters (including the environment) through laws known as “Assembly Measures”. When passed, these have the same effect as Acts of Parliament. Each Measure must set out necessary consequential amendments to Acts of Parliament that were previously applicable to Wales, making it clear that the relevant provisions of the Acts in question no longer apply to Wales.

However, if there is a conflict, one needs to prevail. Will this mean the introduction of a priority of law clause allowing Measures to take precedence on contracts being carried out in Wales?

Next week

Next week, I will highlight three areas where the law in England and Wales is diverging, which may affect the construction and engineering industries.