The article below appeared on the Daily Business website under the headline It’s no longer a case of business as usual

Energy Centre WDC

With COP26 just around the corner and almost daily headlines about rising gas prices, small energy firms going out of business and fuel supply shortages at filling stations, our ongoing relationship with fossil fuels is very much front of mind. Added to which I have just finished reading Let my people go surfing, by Yvon Chouinard (founder of the outdoor clothing brand, Patagonia), and Chouinard’s business philosophy about saving the planet is still ringing loudly in my ears.

All of this has made me think about what we are doing, collectively and individually, to address the issue. Are we still pushing it to one side and longing for a return to business as usual? But more specifically, as a commercial property lawyer, what can I do?

I am old enough to remember the days before the Energy Performance Certificate (EPC), and the consternation when they were introduced. The question of who will pay for it – Landlord or Tenant? And the answer, which in reality more often than not turned out to be “nobody”! Many trees were felled for printing out EPCs and re-writing leases with “green” clauses, but there wasn’t much action in terms of improving boilers, or fitting draft-reducing measures to windows, let alone installing solar panels or wind turbines. The excuse at the time was that we were all recovering from the financial crash and there simply wasn’t the capital expenditure budget to implement such measures.

In 2016 new regulations came into force in Scotland, making it mandatory to carry out the improvement measures, although the ability to postpone them has largely resulted in the necessary improvements still not being undertaken.
So far so gloomy, as no one sees it as their responsibility. Or do they? In my line of work, I am definitely witnessing a change of attitude now, with clients proactively implementing sustainable business practices; and resistance to “green” clauses in leases now a rarity.

In terms of physical changes to our building stock, action is needed if we are to meet the Scottish Government’s 2045 net zero target. Retro-fitting property with renewables will of course be trickier, but with new-build properties energy efficiency has been part of the building control regime for over 10 years. It provides a baseline for sustainability, but there is scope to go much further, as with the geothermal heating and cooling system at the V&A in Dundee, for example. Or a more everyday example, the various energy efficiency measures which our client, the craft brewer, Innis & Gunn, has included in the design of its new brewery development – from photo voltaic panels, to re-using the heat generated in the brewing process, and ensuring other aspects of heating and lighting needs are as energy efficient as possible.

It is clearly an easier task to build new properties with energy efficiency integrated into the design, rather than retro-fitting older buildings. But there are other steps business can take to deal with wider sustainability issues. A hospitality sector client, Highland Coast Hotels, earlier this year launched a collection of unique hotels on the route of the North Coast 500. As an initial step, all the toiletries provided in its hotels have been switched to locally made products and it has moved to a green electricity provider across its portfolio. For Highland Coast Hotels, sustainability is a key element of its business, informing all of its decisions, from using local food suppliers and supporting other local businesses, to using modular designs made from local timber in the construction of additional bedroom stock. Such measures demonstrate the shift to sustainability as a core element of business decision-making even where it is not as visible as putting a wind turbine in the grounds or solar panels on the roof.

As a property lawyer I’ve previously been passive in terms of energy efficiency and sustainability issues relating to clients’ properties. But in a climate where that no longer seems appropriate, I am now asking questions about the measures which have been taken to improve matters and discussing proactively with clients what can be done and how the cost can be met. And of course, sharing knowledge about what steps have been successful and about groundbreaking projects that our clients have been involved in – such as Star Renewables and the UK’s first large-scale water source heat pump at Queens Quay in Clydebank.

It was over 40 years ago that Yvon Chouinard recognised the importance of minimising our impact on the planet. As a dedicated mountain climber, he set about living his life and running his business in line with his values, and in doing so created one of the most respected and environmentally responsible companies on earth.

Almost half a century later, we all have a part to play in changing the conversation and adapting our lifestyles in whatever ways we can in order to protect the planet. Personally, I’m aiming to “Be more Chouinard”, because as the title of Mike Berners Lee’s book warns us, There Is No Planet B.

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