Denmark – Response to Case 2009
1. Danish legislation on the use of renewable energies and energy efficiency
Question 1: Is there legislation in your country concerning the use of renewable energies or energy efficiency? Can municipalities create their own (or higher) regulations?
The promotion of renewable energy and energy efficiency is subject to several policy initiatives and legislation in Denmark. In 2008 an overall energy policy agreement was reached between a majority of the political parties in Parliament. As an overall target renewable energy should cover 20 % of Danish energy consumption by 2011. The Agreement has resulted in the adoption of a new Act 1392/2008 on Promotion of Renewable Energy laying down rules on production, grid access etc. for renewable energy. In addition, the Agreement included a specific chapter on energy savings and energy efficiency. For new buildings restrictions shall be imposed that reduces energy consumption by 75 % in 2020 (25 % in 2010, 25 % in 2015 and 25 % in 2020). This has been followed by a 2009 Strategy for reduction of energy consumption in buildings1. Furthermore, funding has been granted for information campaigns and for the establishment of a Knowledge Center for Energy Savings in Buildings2.
Production of wind energy is subject to specific legislation both as regards the siting and establishment of wind turbines. The siting of wind turbines is governed by planning law, including general national planning guidelines for wind turbines as well as municipal and local planning requirements3. In addition the Act on Promotion of Renewable Energy lays down specific measures regarding the establishment of wind energy facilities.
1.1 Energy efficiency in buildings
General requirements on energy efficiency in buildings are laid down in the Building Regulation 08 (Bygningsreglementet08 – BR08) issued according to the Consolidated Act 452/2008 on Building (Building Act). In accordance with the EU Directive 2002/91/EC on Energy Performance of Buildings the Building Regulation 08 lays down energy performance requirements or standards for construction of new buildings and for major renovation of existing (larger) buildings. In Denmark, performance standards are also established for renovation of private homes etc. depending upon the scale of the renovation (e.g. more than 25 % of the registered property value) and the costs of the energy efficiency measures. In addition, the Building Regulation 08 defines two categories of “low energy” houses by higher energy performance than the general standards (50 % and 25 % improvement respectively). It is expected that in 2015 a category of “passive houses” will be included. The above mentioned political targets on energy efficiency will have the effect that all new buildings from 2015 should meet the highest “low energy”-standard (50 %) as defined in the existing BR08. It should be noted that the municipalities have the possibility to lay down requirements in local planning that new buildings should be constructed as “low energy” houses, see below.
Rules on energy performance certificates are laid down in the Act 585/2005 on Promotion of Energy Savings4. An energy performance certificate is required for new buildings as well as for buildings or apartments that will be sold or rented out. A certificate is also required in case of major renovation of existing buildings fulfilling certain criteria. Detailed rules are laid down in Statutory Order 228/2008 on energy certificates for buildings.
1.2. Use of renewable energy sources
There are no general requirements on the use of renewable energy sources in new or existing buildings established by law. An amendment in 2001 of the Consolidated Act 692/1999 on use of renewable energy sources5 that imposed an obligation to install solar power in buildings outside district heating areas was repealed in 2002 after a change in government. The duty to install solar power applied to certain categories of buildings for public and industrial use as well as for private summer cottages and included not only new buildings but also major renovations of existing buildings. The Act now only forms the basis for subsidy schemes to promote the use of renewable energy.
The municipalities have the general responsibility to ensure a general collective heating supply through ‘heat supply planning’ according to the Consolidated Act 347/2005 on heat supply6. The municipalities may thus establish or request the establishment of collective facilities etc. that are based on different energy sources, including renewable energy. The Act on heat supply also empowers the municipalities to request that new – and under certain conditions existing buildings – are connected to a collective facility, cf. §§ 11-12.
According to the Consolidated Act 1027/2008 on Planning (Planning Act) requirements to establish and connect new buildings to collective facilities may be laid down in a local plan, see below. Otherwise, the municipalities are generally not empowered by law to lay down obligations on the establishment or actual use of renewable energy sources in new or existing buildings. However, the municipalities may as landowners register restrictions on land, e.g. restricting use of conventional energy sources. In addition they may enter into private law agreements with developers or others, e.g. when selling land.
2. Energy efficiency and renewable energy in planning law
Question 2: Are there special regulations for renewable energies or energy efficiency in planning law? Has the legislation mentioned in question 1 influence on the planning law? E.g. by setting requirements concerning the use of renewable energy for the energy supply or a standard for energy efficiency of building areas?
Planning law has only to a limited extent included rules regarding energy efficiency and use of renewable energy for new or existing building areas. Since July 2007 the Planning Act includes a new rule (§ 15(2)(22) cf. § 21 a) that the municipality in a local plan can set up requirements that new buildings should be constructed as “low energy” buildings according to the definitions in the Building Regulation 08. The municipalities cannot, however, in a local plan lay down requirements on the actual use of renewable energy sources in individual houses. A local plan may, however, determine the exact location and design of buildings (§ 15(2)(6-7), including specific requirements regarding the materials used etc., which may facilitate or promote e.g. energy efficiency or use of solar power etc.
As mentioned above the municipalities may in a local plan impose certain requirements regarding the establishment of and/or connection to collective facilities for new building areas, cf. Planning Act § 15(2)(11). The establishment of or connection to collective facilities shall be laid down as a prerequisite to take new buildings into use. This implies a possibility for municipalities to lay down requirements on the establishment of collective facilities based on renewable energy sources, e.g. solar power, to the extent that this is based on relevant planning interests. The duty to connect new buildings to collective (infrastructure) facilities, may favour renewable energies if the collective facility is based on renewable energy sources7. More often, however, the rule tends to favour collective facilities based on conventional energy sources. The requirement to connect to collective facilities does not prohibit the use of other energy sources in the buildings, but only implies a duty to establish and pay for the connection. The municipality shall, however, grant an exemption from the connection duty if a new building is constructed as a “low energy” building, cf. § 21.
The Planning Act since 2007 includes rules on so-called development agreements, cf. § 21 b. The scope of development agreements is, however, fairly limited. According to § 21 b development agreements can only be established at the request of a property owner (developer) and only on certain issues, e.g. achieving a higher quality or standard of planned infrastructure in an area.
3. Requirements for new or existing buildings
Question 3: Does legislation (questions 1 + 2) only affect planning for new buildings or does it also affect existing buildings?
The Planning Act does not provide legal basis for setting up requirements in local plans for existing buildings.
Energy efficiency requirements as mentioned above do not only apply to new buildings. Both major renovation of existing larger buildings and of private homes etc. are subject to energy performance standards – the latter however subject to certain limitations regarding the costs of the measures.
Helle Tegner Anker, Professor of Law, Faculty of Life Sciences, Copenhagen University, hta@life.ku.dk
1 Strategi for reduktion af energiforbruget I bygninger, April 2009.
2 www.byggeriogenergi.dk
3 For a short introduction to planning law on wind turbines see H.T. Anker: Regulating wind parks in Denmark, in Tidschrift voor Bouwrecht, nr. 9, 2009, pp. 803-805. For a comparative analysis of wind energy legislation in Denmark, New Zealand, Norway and the United States see H.T. Anker, B.E. Olsen and A. Rønne (eds.): Legal Systems and Wind Energy. A Comparative Perspective, Kluwer Law International/DJOEF Publishing, 2008.
4 Lov 585/2005 om fremme af energibesparelser i bygninger
5 Lovbekendtgørelse 692/1999 om udnyttelse af vedvarende energikilder
6 Lovbekendtgørelse 347/2005 om varmeforsyning.
7 New initiatives have recently been seen as part of local strategies to become ”climate friendly” or CO2-neutral municipalities, e.g. Soenderborg municipality has adopted a local plan for a new solar power facility.