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Sustainable construction projects in the light of law

Sustainable development as well as sustainable construction, carried out in a spirit of care for environment and ecology are currently a global topic, covering all areas of contemporary activity, including politics, broadly defined economy and law (both on the local and global level). As it is known, building industry - construction and exploitation - consume a lot or energy. As far as law is concerned, EU regulations are most significant here, as they are now the main source of law also in Poland. Year in year EU allocates enormous funds for implementing sustainable development policies.

There is an abundance of legal sources and organisations creating law of global scope (eg.: World Green Building Council), which coordinate sustainable development activities, (indirectly) grant certificates of eco-quality to buildings. Therefore, taking in account current trends, content of legal regulations in force and the definition of sustainable development (Article 3 point 50 of the Law on environmental protection Act), a sustainable project is one that fulfils the objective of sustainable development and satisfies demands made by EU regulations on energy saving and use of energy from renewable sources. The implantation of such a project should bring profits to the investor and, at the same time, it should minimize the effects of the building on environment and society. The most important stage of the sustainable development policy still is the so-called politics-energy package, including  Directive 2009/91/EC on  promotion of renewable energies and the new Directive 2010/31/EU on the energy performance of buildings repealing the previous Directive on this subject. The most important assumptions of

Directive 2010/31/EU are:

- reducing CO2 emission by 2020 and reducing energy consumption by 20 % in comparison with year 1990;

- starting with 9th of July 2013, every new building must comply with so-called "minimum energy performance standards";

- by the end of 2018 ( in case of public buildings) and by the end of 2020, the remaining new buildings will have to prove nearly zero energy consumption and to a substantial degree they will have to use renewable energy sources.

The Directive and accompanying guidelines introduce e.g.:

- the definition of a nearly zero-energy building and a building subject to major renovation;

- minimum energy performance standards for buildings

- mandatory energy performance certificates in case of sale/ lease of buildings and obligation to publish such certificates;

- new technical requirements for technical installations.

Is there a "sustainable" law? Are Polish regulations adjusted to EU legislation?

In practice, in order for a project to have the status of "sustainable" in the light of law, it must be carefully planned from the very beginning - that is, from the moment of looking for suitable land for development or from the analysis of real estate offers. Geological survey of the land, design, planned materials and technologies must take into account: environmental and ecology standards (i.e.: energy consumption, CO2 emission, waste and sewage, use of renewable energies, and so on); elements of social dialogue and cooperation (external and internal); raising awareness among employees; adequate chain supply management and many other factors. If they like it or not, investors (but also the producers of building materials and other participants of construction process) will soon have to strive to meet the demands of the Directive and other, national regulations based on the Directive. They are therefore facing a tough challenge of reorganizing their operation - not only when it comes to products alone (in this case construction projects), but also above all a new approach to business and business management. This new approach should of course bring own profits but, with the help of available legal means, it should also bring broadly defined profits to the society.

Currently we cannot say that existing rules and regulations meet all these conditions and that they themselves are "sustainable". Although we have EU regulations, Directives and common standards, in many aspects there is still a need for regulation of key issues internally (that is on the national level).

Guidelines for the Directive 2010/31/EU impose on member states the duty to:

- establish new methodology of preparing energy performance certificates for buildings;

- define demands regarding energy performance of buildings;

- independently define the expression ,,nearly zero-energy consumption, taking into account national conditions";

- implement an independent system of control of the certificates and penalties for non-compliance with the law in the scope regulated by the


- determine means of financial support for investors who carry out sustainable projects.

Although there is not much time left until 9th of July 2012, when we should change our national legal regulations and amend them so that the comply with guidelines of the Directive, we unfortunately do not have many (draft) implementing regulations. Keeping in mind the fact that legal aspects connected with carrying out of a project concern the whole process of construction  - including the construction plan, implantation, exploitation and utilization - it is possible to foresee that there will be very many changes in existing national regulations and many new regulations:

- The Act of 7 July 1994 - Construction Law (striving for broader use of renewable energies, point 6 was added to Article 33 (2) of The Construction 

Law Act, which will enter into force on 1 of August 2012);

- The Act of 27 April 2011 - Law on environmental protection ;

- The Act of 10 april 1997 - Energy law;

- The Act of 21 August 1997 - Real Estate Management;

New implementing regulations, amending the existing Regulations:

- on methodology of energy performance and ways of preparing certificates of energy performance for buildings;

- on technical conditions which buildings and locations of buildings should meet;

- on the detailed scope and form of a construction project;

- on the compliance schedule;

- on trainings and exams for persons applying for the right to prepare certificates of energy performance of buildings.

Currently, a draft law on energy performance of buildings is being discussed.

Obstacles for the implementation of sustainable construction idea in Poland.

As I mentioned, the main obstacle for the investors is the lack of  legal instruments described above. For this reason, this task is neither easy nor profitable. There are many risks and dangers caused by gaps in law, inconsistency of regulations and uncertainty of regulations to come. It is hard to say how the national politics will look like, which hinders planning and implementation of sustainable projects in Poland. Will the methodology describing demands for energy performance of buildings take certificates into account? What will be the minimal standards of energy use? We have no answer to this question, nor to many others. And a construction process is difficult enough without these problems. Consider the lack of consistent area development plan, complex administrative procedures and - in case of permit for the construction - special laws and uncertainty about funding sources. The issue of funding - the costs of implementation of legal regulations (implementing new technologies, obtaining energy, changing existing devices, use of special materials) is a key issue for investors, if they are to carry out sustainable projects. This aspect is not only important for investors, but also for companies producing materials and construction solutions, which will not comply with new standards. Let us remember that in other European countries the participators of a sustainable construction project (including investors, but also purchasers) can count on tax deductions and advantageous credit facilities. The absence of an appropriate motivation system and falling foul of the postulate of "making sure the investor will profit and at the same time minimizing the negative influence of the project on the environment" is one of the major obstacles for implantation of sustainable construction. It all boils down to the way Poland will solve the issue of encouraging investors to use new technologies.



Opportunities for companies engaged in a sustainable construction project.

Currently, it probably does not look too encouraging. However, apart from many tough duties connected with implementation of the ideas of sustainable construction, there are also new perspectives and possibilities for those who take part in the process. In spite of all problems, it is reasonable to expect that a part of them will disappear when the Directives discussed here enter into force and later, when national regulations based on these Directives become effective. The implementation of a sustainable project should be easier, quicker and more profitable - if only because of appropriate planning and management of the construction process. Contrary to general opinion about unprofitability and high costs of this type of undertakings, we already have perfect examples on our Polish market of enterprises which carry out the policy of sustainable development with success. As it has already been emphasized, we need to be aware that it isn't possible to avoid the necessity of complying with the new law. So it is advantageous to start implementing it already now. In the long run, this will allow to:

- increase competitive advantage;

- save money;

- increase the efficiency of the enterprise;

- expand markets;

- enjoy benefits in the image and relations;

- speed up the procedures preceding the project;

- make use of deductions and subsidies.

As Peter Drucker, a big name in management once said:  Every, even the smallest, social and global challenge of our day could be turned into business opportunity . We can say that this is the investors (and other participants of a construction process) who decide how they will use this opportunity. How they will function in the new reality, shaping the demand for sustainable construction already now.

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