Air Quality: Government urged to bring in radical indoor air quality legislation

The Building Engineering Services Association (“BESA”) is calling on the Government to revamp the air quality in buildings regime in the UK. This would include making measuring and monitoring of indoor air quality mandatory in certain types of building, specifically particulate matter along with CO2 and volatile organic compounds (VOCs). They also propose the adoption of the latest filtration standard (ISO16890) in building regulations to allow building engineers to tackle the very smallest particulates. Schools, hospitals and healthcare facilities are considered cause for particular concern.

Current laws on air quality

There are at law maximum limits (limit values) for a range of air pollutants, including nitrogen dioxide (NO2), present in ambient air at ground level. The Environment Act 1995 requires the government to produce a National Air Quality Strategy (the "NAQS") setting out standards and objectives for improving ambient air quality in the UK. The current NAQS was published in 2007 and it establishes a framework for improving ambient air quality in the UK, sets standards and objectives for several key air pollutants, and explains the various measures that have been put in place to achieve those standards and objectives.

The NAQS are aimed primarily at the protection of human health, and target concentrations of the relevant air pollutants where significant risks to public health are likely to occur. The Air Quality Standards Regulations 2010 (the "Air Quality Regulations") form the basis of UK case law such as:

• ClientEarth v Secretary of State for Environment Food and Rural Affairs: In November 2016, in a case brought by environmental activist lawyers ClientEarth, the Court of Appeal decided on the publication dates for a new Air Quality Plan following an earlier determination that the government's existing Air Quality Plan for the reduction of NO2 emissions had failed to comply with EU and domestic law.
• European Commission v United Kingdom: In this 2015 case brought by the European Commission against the UK, it was decided that the UK had failed to correctly apply air quality requirements by not ensuring that a power station in Wales complied with the emissions limit with regards to certain air pollutants.

However, rather pertinently there is effectively an exemption within the Air Quality Regulations which means that the limit values don't strictly apply within a building that is also a workplace. The reason for this is that workplaces are governed separately by the UK's health and safety at work regime.

Current indoor air quality provisions

Thee Health and Safety at Work Act 1974 (the "HSWA") requires UK employers to ensure the health, safety and welfare at work of all their employees. Regulations made under the HSWA require UK employers to assess any such risks to health, to consult with their employees about matters which impact health and safety, and to provide their employees with a sufficient quantity of fresh or purified air. A Code of Practice approved by the UK's Health and Safety Executive sets out the steps UK employers are expected to take to ensure the provision of a sufficient quantity of fresh or purified air.

In summary, the obligations regarding indoor air quality break down into the following:

• Risks to health - The HSWA requires employers to ensure the health, safety and welfare at work of all their employees, and others on sites that they operate, taking into account vulnerable persons in their business such as those with pre-existing medical conditions.
• Management systems to create a healthy work environment – The Management of Health and Safety at Work Regulations 1999 require those in control of a building to put in place systems of control and monitoring on an on-going basis to ensure that hazards to health are assessed and addressed and any issues are reported to the employer to enable them to be controlled.
• Sufficient fresh air - The Workplace Health Safety and Welfare Regulations 1992 and associated Approved Code of Practice on the Welfare Regulations on ventilation within a workplace building (the “Welfare ACOP”) requires employers to provide a sufficient quantity of fresh or purified air.

What is 'sufficient fresh air'?

The Welfare ACOP expressly states the following:

"Enclosed workplaces should be sufficiently well ventilated so that stale air, and air which is hot or humid because of the processes or equipment in the workplace, is replaced at a reasonable rate. The air which is introduced should, as far as possible, be free of any impurity which is likely to be offensive or cause ill health. Air which is taken from the outside can normally be considered to be ‘fresh’. However, air inlets for ventilation systems should not be sited where they may draw in contaminated air (for example close to a flue, an exhaust ventilation system outlet, or an area in which vehicles manoeuvre). Where necessary, the inlet air should be filtered to remove particulates.

In many cases, windows or other openings will provide sufficient ventilation in some or all parts of the workplace. Where necessary, mechanical ventilation systems should be provided for parts or all of the workplace…

The fresh-air supply rate should not normally fall below 5 to 8 litres per second, per occupant."

The Welfare ACOP, like other Codes of Practice, does not have legal force. However, the Courts will take it into account in any legal proceedings, and relevant provisions of the Welfare ACOP will be admissible in proceedings if it is proved that there was at any material time a failure to observe any provision of the ACOP which appears to the Court to be relevant to any matter which it is necessary for the prosecution to prove in order to establish a contravention of the relevant requirement or prohibition. In those circumstances, that matter shall be taken as proved unless the Court is satisfied that the requirement or prohibition was in respect of that matter complied with otherwise than by way of observance of that provision of the ACOP.

What next?

One driver for the potential shift has been the movement in technology for monitoring and disseminating data on air quality. “The building engineering sector now has a range of proven techniques that are already making a difference in many buildings,” said Nathan Wood, chair of BESA’s Health & Wellbeing in Buildings group.

It is yet to be seen how this will be approached by the Government in considering the disparity between the provisions as regards outside outdoor and indoor air quality, which will have synonymous effect in the long term.