Email address: firstname.lastname@example.org
Office for Low Emission Vehicles
Department for Transport
Great Minster House
33 Horseferry Road
20 September 2019
Re: Electric vehicle charge points in residential and non-residential buildings
This response to your consultation is on behalf of The Federation of Private Residents’ Associations (FPRA), which as far as we know, is the only national body that represents the voice of leaseholders in England and Wales.
We have around 500-member associations representing tens of thousands of individual leaseholders which we represent through their Resident Associations, Resident Management Companies, Right to Manage Companies and similar groups.
We have drafted this response on the basis of our regular daily contact with our members who inform us of the problems they encounter in the leasehold sector and in recent times we have had increasing enquiries about the charging of electric vehicles, so feel that this is particularly an apt time to be looking at this matter.
It is unfortunate that your department failed to let us know about this consultation directly and that we only heard about it through our membership, which we hope is not indicative as to why these proposals are so poorly drafted and fails to understand the implementation of charging points within blocks of flats within the leasehold sector.
We have a committee of both leasehold representatives and experts from throughout the sector that have also helped with the preparation of this response.
Fundamentally this Federation and its membership actively supports the principles behind the proposals and indeed works closely with other environment groups to try and deal with some of the challenges facing this issue.
The problem with this consultation and its proposals is it lacks an understanding of the leasehold sector and how it works and as such, rather than aiding the introduction of electrical vehicle charging points to leasehold blocks, if implementing as shown it will inhibit and put obstacles in the way of implementing this important introduction.
We strongly feel that you need to talk further (hopefully you already have) to your colleagues in the Leasehold, Commonhold & Rentcharges Division of the Ministry of Housing, Communities and Local Government, together with the Law Commission as well as other Government groups who are all involved in the revision of Leasehold Legislation of which your proposals should form part and not be separate. You should also be talking to the Governments sponsored adviser on this issue The Leasehold Advisory Service known as LEASE, who are responsible to help with this matter. Also to the RICS and trade body ARMA, whose members will often be responsible for implementation.
- We support the introduction of electric vehicle charging.
- The current proposals do not reflect the reality of residential blocks of flats, this organisation cannot comment on non-residential buildings which is outside its remit, however, there are many buildings which are of mixed residential and non-residential use.
- We have concentrated on existing blocks rather than ‘new build’ as this is our main area of expertise, however, many of the points made will also relate to new build blocks.
Key Factors that need further consideration
- The legal structure of blocks of flats. Most blocks are freehold with a leasehold occupation, with the lease document being the principle legal document. Many of these documents are prescriptive of what is allowed and not allowed on the estates, and as most were drawn up before the concept of electric vehicles this is not allowed for. Further many leases specifically prevent a charge to leaseholders for any ‘improvements’, restricting the service charge to the maintenance of existing infrastructure and prohibiting the introduction and charge of new infrastructure. If this fundamental legal situation is not addressed the whole introduction of charging points could fail and be a minefield of legal disputes. So your whole proposed legislation rather than helping could be detrimental to your welcome objective of meeting climate change objectives.
- Building upon this point many blocks have allocated parking with the costs of the parking also separated from general services charges. What happens if one person wants a charging point on their allocated space and another does not, and equally can charging point costs be charged to spaces that are not serviced by them. This goes further that when flats and spaces are sold, who pays? Many leases have no provision for swapping of spaces. What about visitor spaces? In larger blocks there are often security access issues to parking. The list is extensive and beyond the remit of this consultation but needs to be carefully considered before ill prepared legislation is put forward.
- Blocks with garages. The draft refers to open car park spaces. Many blocks of flats have garage blocks which is where the cars and the parking provision is located. Generally, fire regulations would prohibit electrical charging points within an enclosed garage space. How are you going to address this?
- Blocks with built in often lower level or under ground parking. Again, how does this effect fire regulations and the general provisions as above. Where even more commonly there is greater restriction of allocated parking particularly in new build and more recently built estates.
- Access is often difficult, and consideration needs to be given to the maintenance of the units.
- Listed buildings. Many of our members occupy blocks of flats, particularly in central London, but also in many other places where the whole block is listed and anything that changes the appearance of block or estate can be problematic so running substantial new electricity supplies may be impossible.
- Many blocks although not listed, have a particular look and style such as: Mock Tudor, Art Deco etc. which again would have serious objections as above.
- Power supply. Whilst we note you have based an exemption on a three times assumed cost of normal installation , it does not allow from any of the variations in reality on the day to day design of estates, where irrespective of cost there is not physical space to put in the supply.
- Many blocks already face substantial challenges particularly our members in the retirement sector for providing power points for disability vehicles, which even in the latest build retirement blocks is still often not provided for. Indeed, the building regulations are woefully inadequate in this regard.
- Many blocks of flats are located above shops or other commercial premises with carpark facilities shared, further research is required as to how electric charging points can be used in this regard.
- Mixed tenure blocks. Many blocks because of government planning legislation requires mixed housing, with so called ‘social housing’ being an important element. However, planning rules which insists on social housing also have exemptions and developers wishing to maximise space often wish to restrict parking provision. Have you considered how these interconnects with your proposals. Shared ownership is another challenge, where the poorly drafted ‘Shared Ownership legislation’ is currently undergoing consultation leads to situations where charges are made on the leaseholder who has no say under the legislation as to what is provided until they achieve 100% ownership.
- There maybe a fundamental breach of rights where people are being asked to pay for electric vehicle charging points and they have no input or say into their provision because of other legislation.
- Boundaries of blocks can be a challenge. Often there are estates where the actual boundary is estate wide but individual blocks within the estate have their own boundary, your proposals do not make clear at which point and where the 10-space count point should be.
- Grant money. Whilst a £500 grant per charging point is welcome, who will get this? Will it be the individual leaseholder, the management company, the freeholder or indeed one of the intermediaries that may be involved? After all we have head leaseholders, flying leases and umpteen other variations.
- Commonhold. It is the ambition of the government that new blocks be built under the ‘commonhold legislation’ with its prescription under legislation of its management and charges. How would these proposals be incorporated?
- Who will own and maintain the equipment? Will it be the leaseholder? Or perhaps if it is a charging point that serves two parking spaces, one of the two. Or will it be the whole block? Or the whole estate? Or in the case of certainly some of our members where they have separately an entrance charge, a block charge and an estate charge. Some estates split their parking charge from other estate charges, but some don’t.
Whilst we strongly support the concept without good implementation this will be counterproductive.
This Federation would be very willing to assist the department and Government generally with this matter, but it needs a lot more thought and consideration across many Government Departments and other organisations to successfully achieve its welcome aim.
Voluntary Chairman on behalf of FPRA
Your Specific Questions (We have only answered those where we feel we can usefully help you at this point)
Q1: Do you agree with our proposed policy position? Please note that we are legally obliged to transpose the EPBD minimum requirements for residential buildings with more than 10 parking spaces.
Q2: If no, please specify why, including what requirement you think would be suitable.
We feel that a 10-space proposal is too limiting, and to achieve the climate change there should not be a specific number, but instead, the legislation should be a facilitator of provision.
Q3: Do you agree that the proposed Building Regulation should mandate the introduction of electric vehicle charging points rather than set them as optional?
Q4: If you disagree, please explain why.
It has to be optional as drafted as it is so impractical as drafted and will contradict other legislation.
Q5: What other issues do you think, relevant to using Building Regulations to set standards for the provision and safety of electric vehicle chargepoints, we should consider?
See our general comments above.
Q6: Do you agree that the government should mandate electric vehicle charging for all new dwellings with an associated car parking space (including both multi-dwelling and single-dwelling buildings)?
Q7: If no, please explain what you think would be the appropriate scope of the requirements.
Q8: Do you agree the requirements should be for one chargepoint per dwelling rather than for every parking space associated with the building?
Q9: If not, please explain what you think would be the appropriate requirement.
See our general comments above.
Q10: Should the proposed Building Regulation requirement for electric vehicle chargepoint infrastructure apply where the building has undergone a material change of use as defined in paragraph a) or b) of Regulation 5 of the Building Regulations 2010?
Q11: If you disagree, please explain why.
Q12: Should the proposed Building Regulation requirement to install an electric vehicle chargepoint in every new home also apply to residential buildings undergoing a major renovation?
No – for the practical reasons above.
Q13: If so, do you think the requirement should apply only to residential buildings undergoing major renovation with more than 10 car parking spaces?
No – for the practical reasons above.
Q14: Please provide an explanation for your answer, including any evidence or costings if relevant.
Q15: Do you agree with our proposed policy position? Please note that the proposed requirement is a minimum requirement that the government is legally obliged to transpose under the EPBD.
Q16: If no, please specify why, including what alternative requirement you think would be suitable.
Q17: Do you agree that one chargepoint per existing building with more than 20 car parking spaces is a suitable minimum requirement to transpose the EPBD?
Q18: If you disagree, please explain why.
See answers above.
Q19: How can the government apply these regulations in a way which balances the benefit to EV drivers and the requirements of the EPBD, with the burden on landowners?
Q20: Do you agree that the appropriate enforcement regime for this power should set a sliding scale of penalties for non-compliance?
Q21: If you disagree, what do you think would be the appropriate enforcement regime for these requirements?
Q22: Do you have a view on which organisation should be defined as an enforcement body for compliance with the new regulations for EV charging infrastructure?
Q23: What steps should we take to mitigate against any potential negative impact of the implementation of these regulations?
Yes – to consider the grant level. This also needs to be taken into account; different costs in different parts of the country.
Q24: Are the definitions in the draft Approved Document accurate, clear and do they provide the intended meaning?
No – they need improving.
Q25: If you think the definitions could be improved please suggest how.
Yes – see our comments above.
Q26: Do you agree with using the concept “within the site boundary” to define which parking spaces which are in scope of the regulations?
Our concerns are expressed above.
Q27: If not, please explain what you think an appropriate definition would be.
There is no ‘one answer’.
Q28: Do you agree that the government should specify a minimum charging power of 7 kW?
Q29: If no, please specify what specification would be suitable and give your reasons.
The Government should not – technology is moving forward at such a speed that although 7kW may seem a suitable minimum today, it may not be in a short number of years time.
Q30: Do you agree that the government should specify that chargepoints installed under the Building Regulations should be at least Mode 3 or equivalent?
Q31: If no, please explain your answer
Q32: Do you agree that the government should specify that chargepoints installed under the Building Regulations must be untethered?
Q33: If no, please explain you answer.
Q34: Do specifications with regards to location of the cabling route as outlined in the draft Approved Document sufficiently consider accessibility requirements?
Q35: Please provide any reasoning, and any details of potential other specifications that would be needed.
See our comments above.
Q36: Do the proposed accessibility requirements in section 1.24 of the draft Approved Document sufficiently consider accessibility requirements?
No – see comments above.
Q37: Should we include any additional accessibility requirements?
Yes – see our comments above.
Q38: Are the specifications with regards to safety standards as outlined in the draft Approved Document appropriate?
Q39: If no, please specify which further safety specifications we need to include.
See our comments above.
Q40: Do you agree that the installation, addition or alteration of dedicated circuits and earthing and bonding arrangements for electric vehicle chargepoints should be notifiable building work?
Q41: Is the proposed guidance in the draft Approved Document clear and fit for purpose and provide sufficient detail in order to comply with the requirements?
Q42: If you think the guidance could be improved, please suggest how.
See our comments above. It is important you consult the drafting of this with people who have expertise and on the ground knowledge.
Q43: The diagrams in the draft Approved Document are illustrative only. Are they accurate and do they provide sufficient detail?
Q44: If you think the diagrams could be improved, please suggest how.
Yes – see our comments above.
Q45: Does the draft Approved Document meet our proposed policy intent?
Q46: Is there any information missing from the draft Approved Document?
Lots – see comments above.
Q47: What is a reasonable transition period between publishing the new regulations and guidance and the requirements coming into force?
Q48: Do you think we should apply an exemption to the chargepoint requirement when the grid connection cost is high?
Q49: If no, please explain why including any potential exemption if relevant.
We think the whole basis is wrong with calculating it on cost rather than practicality.
Q50: Does the draft text in the draft Approved Document (section 1.27) capture the intended exemption?
Q51: If no, please suggest an alternative drafting.
See our comments above.
Q52: What do you think is a reasonable maximum cost for grid connection? Please provide any evidence to support your answer.
Q53: Does this exemption sufficiently mitigate any negative impact on housing supply?
Q54: Are there any other technical feasibility considerations that should be taken into account when determining the application of the requirements?
See our comments above.
Q55: If yes, please outline what these technical considerations should be, including any supporting evidence.
Q56: Should we apply an exemption to the requirements for material change of use in residential buildings in cases where there is adequate spare capacity in the incoming electrical supply to the car park?
Q57: If you disagree, please explain why.
Q58: Do you agree that we should apply an exemption for listed buildings and buildings in conservation areas as suggested above?
You are asking the wrong question.
Q59: If you disagree, please explain why.
Q60: Should we apply an exemption to the requirements for major renovations in residential buildings where the cost of installing the cable routes exceeds 7 per cent of the total cost of the major renovation?
We do not understand why this is proposed.
Q61: If you disagree, please explain why.
Q62: Should we apply an exemption to the requirements for major renovations in residential buildings in cases where there is adequate spare capacity in the incoming electrical supply to the car park?
See above comments.
Q63: If you disagree, please explain why.
Q64: Should we apply an exemption for the requirement for new non-residential buildings and non-residential buildings undergoing major renovations to small and medium enterprises?
Q65: If you disagree, please explain why.
Q66: Should we apply an exemption to the requirements for major renovations in non-residential buildings where the cost of installing the cable routes and chargepoint exceeds 7 per cent of the total cost of the major renovation?
Q67: If you disagree, please explain why.
Q68: Should we apply an exemption to the requirement for existing non-residential buildings to small and medium enterprises?
Q69: If you disagree, please explain why.
Q70: Do you agree with the assumptions, costs and impacts set out in the Impact Assessment?
Q71: If you do not agree, please provide supporting evidence.
See our general comments.
Q72: How are these costs likely to change over time?
Q73: What are the likely cost reductions from economies of scale?
We think this unlikely. Indeed, with time constraints and lack of expertise, the opposite may apply.
Q74: Are these cost reductions likely to be relevant for both installation and hardware costs?
Q75: Are there any groups who would be impacted by these regulations that have not been captured by this assessment?
Yes – see our general comments.
Q76: Would multiple single-occupancy developments (such as housing estates) be able to take advantage of economies of scale savings for chargepoint installation?
Q77: What are the likely technological learning rates that chargepoint hardware would experience?
Q78: Are you aware of a more suitable methodology for capturing the variation in grid connection costs?
Q79: Does the assessment of cost incidence seem accurate?
Q80: Are there likely to be disruption costs in a retrofit scenario, and if so how large are these likely to be?
Yes – see our general comments above.
Q81: Have we captured all the benefits, and if not, can you suggest any additional benefits?
Q82: What will be the impact on housing supply of introducing a requirement for chargepoint infrastructure on new dwellings?
Additional information supplied by FPRA legal Honorary Consultant Cassandra Zanelli:
The main concern is in relation to the consultation (legal intricacies aside) is the fact that the department for transport propose that regulatory changes are made to:
- “New build” residential buildings
- “New build” non-residential buildings;
- Existing non-residential buildings.
The obvious omission here is existing residential buildings.
We know from the MHCLG statistical release (issued this morning) that in 2017-18, there were an estimated 4.3 million leasehold dwellings in England. This represents a substantial “chunk” of English housing stock, which is essentially being ignored by the department for transport in their consultation.
Whilst of course we welcome changes that are proposed and indeed support the principles behind those proposals, the existing housing stock cannot, in our view, simply be ignored.
Turning then to the legal intricacies of this matter.
Parking spaces are dealt with in a number of ways. Some leases demise those parking spaces, others give lessees exclusive rights over a designated parking space.
Whatever the “ownership” of the parking space, there can be no doubt that the wall “maimed” by the installation of the charging point does not belong to the lessee, nor does the power supply that they will tap into.
Separate licences will need to be entered into with the landlord to enable the equipment to be installed, and for the supply to be provided.
And of course because the wall that’s being maimed does not belong to the lessee, this isn’t a typical “licence for alterations” scenario, and therefore there is no obligation on the landlord to give permission for the installation to go ahead.
Excluding existing buildings from the consultation and proposed regulations offers no assistance whatsoever to the millions of leaseholders who may want to install a EV charging point, but who, because of the intricacies and minefield of leasehold law, are unable to do so.
This is where government needs to step in, and assist those millions of leaseholders so that the default position is that landlords have to agree to the installation of the equipment etc, and, accordingly, that landlords are not entitled to unreasonably withhold consent.
Additional information supplied by FPRA Director Shaun O’Sullivan:
I suppose if I had an underlying concern it is the fact that the consultation is, so far as residential buildings is concerned, in respect of new builds only or those undergoing material change, whereas the response largely highlights the issues faced by existing buildings; thus we could be accused of ‘answering the wrong question’! However, the proposed response does acknowledge this and makes the point under ‘General Points’ in the covering letter that we have concentrated on existing buildings.
However I believe that the concerns of members living in existing blocks cannot be ignored; as I said in my article on the subject in Issue 127 of the Newsletter ‘Newly built blocks of flats, particularly those with the space offered by large, access controlled, underground parking areas are likely to fare the best’. But equally I said that ‘….for existing blocks the picture looks less rosy and the prospect of installing charge points – either for individual lessees or on a block basis – is likely to be something of a challenge’. This sentiment is very much reflected in Yashmin’s answer to a member’s question in the latest Newsletter. Thus, although the proposed response to this consultation might be seen by the Department of Transport as being somewhat misplaced, I believe the difficulties faced by existing leaseholders need to be addressed, that the links with work going on across other government departments needs to be drawn and that the aspirations of the Road to Zero strategy are, arguably, being undermined by the constraints imposed by the legislation affecting leasehold tenure. Thus, although we are not wholly responding to the question being asked, I fully endorse the planned response in order to highlight the challenges faced by existing leaseholders.
My personal perspective on the general concept of charging points for flats is, as I rather hinted at in the article I penned, likely to result in changes to building regulations for new builds but that existing flat-dwellers will largely be reliant on workplace charging points or public charging points, such as kerbside points now being installed, often with the support of OLEV grants. I rather doubt that an easy answer will be found for existing leaseholders; I might be proved to be wrong!