Articles

Going green pays off

Business Law & Tax Review October 2009
By Caroline Mulholland & Lerato Matshe

SA has recognised the risk of climate change in its "National Climate Change Response Policy" that was launched at the National Climate Change Summit in March.

It has been estimated that commercial buildings account for approximately 20% of greenhouse gas emissions, both during the construction phase and once in use. Therefore, one of the possible ways in which SA could reduce its greenhouse gas emissions, and contribute in a positive way to reducing the effects of climate change, is through the design and construction of "green buildings".

Green buildings are designed and constructed to reduce negative environmental effects through, among other things, efficient energy consumption, reduction in green house gas emissions, sustainable use of water and building materials, and management of waste.

The Green Building Council of South Africa (GBCSA) was established in 2007. The council launched the Green Star South Africa Environmental Rating System for Buildings (Green Star SA) in November last year for new commercial buildings. This rating system can be used to measure the "greenness" of a building's design and construction against the Green Star SA objectives of reducing environmental and human health impacts.

The Minerals and Energy Department introduced and energy efficiency strategy in 2005 to address the challenges of sustainable development and to identify the benefits of improving South Africa's energy efficiency. Last year the department published electricity regulations for compulsory norms and standards for reticulation services under the Electricity Regulation Act, 2006. These require energy efficient fittings in all buildings, subject to specified exceptions, and energy efficient street and highway lighting must be in place by 1 January 2010. Requirements for existing buildings, with regard to the remote control of the electricity supply to facilities for the heating (including heating of water), ventilation and cooling, must be met by 1 January 2012.
 
Further, a recently introduced standard for buildings and construction known as SANS 204, designed for incorporation into the National Building Regulations, will go a long way to ensure the implementation of energy efficiency targets. The aim of SANS 204 is to specify design and building standards for new buildings to ensure energy efficiency, thereby reducing the building's energy consumption and thus its energy requirements. These standards may also be used to retrofit existing buildings to improve their energy use.

In addition to the environmental benefits of green buildings, a corporation could take advantage of the financial incentives of going green. These include obtaining carbon credits and taking advantage of the proposed tax incentives and energy efficiency savings.

It is important that, at the planning stages, all building contractors or parties wishing to erect a building take cognisance of national and provincial legislation that may either prohibit or affect the construction of a building. The National Environmental Management Act, 1998 may be triggered for construction and development activities, with associated structures and infrastructure, where the total developed area is 20ha or more.

In such event, a full environmental impact assessment must be carried out. In the case of activities having a less significant impact on the environment, a basic assessment procedure is triggered under the National Environmental Management Act.

If the proposed construction of the building may have a detrimental impact on a water resource then a water use licence must be applied for. Environmental restrictions could be anticipated in areas designated as biodiversity areas, nature reserves, memorial parks, or heritage areas.

Legislative requirements, and regulations promulgated under section 17(1) of the National Building Regulations and Building Standards Act, 1977 (National Building Regulations) also regulate building standards and take cognisance of environmental issues, such as the handling of waste material on site and provisions relating to contaminated land.

The National Building Regulations empowers a local authority to order a site owner, in writing within a specified time, to remove waste which accumulates beyond the normal levels. Failure to comply is a statutory offence.

Contaminated land is defined in the National Building Regulations as "any land that, due to substances contained within or under it, is in a condition that presents an unacceptable risk to the health and safety of occupants of buildings constructed on such land".

In the event that a person has applied to the local authority for approval in respect of the erection of any building, and the local authority has reason to believe that the proposed site for such building is situated on contaminated land, the local authority must inform the applicant. On receipt of such notification from the local authority the applicant must conduct a "geotechnical site investigation". However, if the applicant is aware that the site is contaminated then it may be compelled to commission such investigation. The results of the probe would determine whether or not the building should be erected on the site and the conditions that need to be adhered to.

The concept of contaminated land has been included in Part 8 of the National Environmental Management: Waste Act, 2008 (the waste act). The waste act commences on 1 July 2009, except for section 28(7)(a), Part 8 and section 46. The waste act requires the Minister of Water and Environmental Affairs to keep a national contaminated land register of investigation areas. If contaminated, a site must be registered against the property title deeds.