COBRA AUBEA 2015

Sydney, Australia

8 – 10 July 2015

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RICS COBRA AUBEA 2015

The Construction, Building and Real Estate Research Conference

of the Royal Institution of Chartered Surveyors

The Australasian Universities’ Building Educators Association

Conference

Held in Sydney, Australia in association with AUBEA, the University

of Technology Sydney and University of Western Sydney

8 -10 July 2015

© RICS 2015

ISBN: 978-1-78321-071-8

Royal Institution of Chartered Surveyors

Parliament Square

London

SW1P 3AD

United Kingdom

www.rics.org/cobra

The papers in this proceeding are intended for knowledge sharing, stimulate debate, and
research findings only. This publication does not necessarily represent the views of RICS,
AUBEA, UTS or UWS.

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THE EVOLUTION OF “GREENER” LEASING PRACTICES IN
AUSTRALIA AND ENGLAND

Susan Bright1, Julia Patrick2, Ben Thomas3, Kathryn B. Janda4, Esther Bailey5,
Tim Dixon6, Sara Wilkinson7
1
New College, University of Oxford, Oxford OX1 3BN, UK
2
Environmental Change Institute, University of Oxford, Oxford University Centre for the
Environment, South Parks Road, Oxford OX1 3QY, UK
3
Better Buildings Partnership, City of Sydney, 456 Kent Street, Sydney NSW 2000, Australia
4
Environmental Change Institute, University of Oxford, Oxford University Centre for the
Environment, South Parks Road, Oxford OX1 3QY, UK
5
Better Buildings Partnership, City of Sydney, 456 Kent Street, Sydney NSW 2000, Australia
6
School of Construction Management & Engineering, University of Reading, Reading, Wokingham
RG6 6UB, UK
7
School of the Built Environment, University of Technology, Sydney, NSW, Australia 2007

ABSTRACT

Improving the environmental performance of the built environment is a ‘super

wicked’ problem, lacking a simplistic or straightforward response. This is
particularly challenging where space is rented, in part because the relationships
between the various owners, users and managers of the space is regulated – at least
in a formal sense - through the lease. Traditional leases largely ignore
environmental considerations and present barriers to making energy efficient
upgrades. Leasing practices are evolving to become greener. Evidence from a
Sydney Better Buildings Partnership (BBP) study, Australian leasing experts, a UK
commercial lease study and a case-study of a major UK retailer, Marks & Spencer
(M&S), suggests an increasing, trend towards green leases in most of these markets
and opportunities for improving environmental performance through green leasing.
Further research is needed in both countries to understand the impact that greener
leasing has on environmental performance of buildings.

Keywords: energy efficiency, environmental performance, green leases, landlord,

tenant.

INTRODUCTION
‘Green leasing’ has become a familiar term in recent years, encapsulating the idea
that this is a new form of leasing that will help meet environmental targets. In some
respects, this convenient, and catchy, phrase has, however, generated both false fears
and false hopes. Fears that it is a radically different, and therefore risky, form of
leasing; hopes and expectations it will transform the environmental performance of
tenanted buildings. Emerging from early reticence and enthusiasm is a more
nuanced understanding of how evolution, rather than transformation, of better,

1
[email protected]
2
[email protected]
3
[email protected]
4
[email protected]
5
[email protected]
6
[email protected]
7
[email protected]

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‘greener’, leasing practices can contribute to improving the environmental
performance of rented commercial property. In particular, greener leasing practices
have the potential to address a number of widely acknowledged problems with
traditional commercial leasing practices, which can be broadly grouped into three
classes: a structural problem with the split incentive, an adversarial relationship
between landlords and tenants, and lease wording that largely ignores environmental
considerations and may have negative environmental impact (Hinnells et al. 2008).
Collectively, these account for the ‘landlord tenant divide’ that is said to constitute a
major barrier to improving energy performance in commercial property. Greener
leasing practices can adjust the incentive structures within leases to facilitate upgrade
and retrofit initiatives, promote co-operative dialogue between the landlord and
tenant, and incorporate environmentally sensitive wording.

This exploratory paper presents early evidence of the evolution of green leasing
practices through comparative case studies of green lease practices in the UK and
Australia across the office and retail sectors. It draws on expertise from both the
Sydney and UK Better Buildings Partnerships (BBPs), evidence from an Australian
property law expert, previous research of the authors, and new qualitative research
from an EPSRC funded project investigating energy management in the UK retail
sector, called Working with Infrastructure, Creation of Knowledge, and Energy
strategy Development (WICKED) (Janda et al. 2013). The acronym WICKED
draws on Rittel and Weber’s (1973) conceptualisation of complex problems that defy
simplistic or straightforward planning responses as wicked, or tricky. The paper
starts with a section on background and context, then explains the reasons for
selecting the four case studies discussed. Findings from these studies are presented,
illustrating the evolution of green leasing practices in Australia and the UK. The final
section discusses broader issues, and the paper concludes with ideas for further
research.

BACKGROUND AND CONTEXT

Leases set the legal framework for renting property. In both the UK and Australia the
majority of commercial property is rented: 56% in the UK (Property Industry
Alliance 2014) and 70% in Australia (T. Crabb, Head of Research Savills, personal
communication to Sara Wilkinson, 2015). In the UK, traditional leases reflect their
currency as an institutional investment. Altering the familiar form of leases creates
risk for landlords and tenants, particularly in relation to the valuation consequences,
and, as previous research has found, the commercial property sector is complex in
terms of its diversity, building types and its range of stakeholders, and tends to
reflect conservatism and risk-aversion (Carbon Trust 2009; Dixon et al. 2014).
Further, lawyers play a critical role in finalising lease terms and tend to strike out the
unfamiliar in order to de-risk the transaction (e.g. The Fifth Estate 2014). Against
this background, Government and industry leadership have been crucial to the
emergence of greener leasing.

Early leadership was provided by the Australian Commonwealth and state

governments in 2006 with the development of a Green Lease Schedule for use by
Australian government agencies when letting or renting buildings. The UK and
Sydney BBPs were subsequently established (in 2007 and 2011 respectively) to work
collaboratively with leading landlords ‘to develop solutions to improve the
sustainability of existing commercial building stock and achieve substantial CO2
savings’ (BBP 2015). Both BBPs developed toolkits providing a menu of ‘green

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clauses’ that parties can elect to include in leases and that provide a framework ‘for
sustainable operations and collaboration throughout the life of commercial leases
right from the on-set’ (Sydney BBP 2013; BBP 2013a).

The UK BBP has also promoted Memoranda of Understanding (MoUs). As they

‘are not legally binding, [and] can be updated … without amending the lease’ (BBP
2013a, p.2), they provide a flexible mechanism for enabling collaboration for
buildings already let. MoUs may also be used alongside the grant of new leases in
preference to ‘greening’ the leases themselves (Jackman 2010). By contrast, in
Australia, MoUs have not been widely used due to the costs of negotiation and non-
binding nature.

Industry leadership, particularly through the BBPs, and leadership by the Australian
government in its role as tenant, have been key to rolling out greener leasing
practices. They are now the norm in the Sydney office sector and amongst BBP
members in the UK. This paper considers four case studies on green leases across
two countries (UK and Australia) and two sectors (office and retail).

METHODOLOGY
This section describes the reasons behind our international comparative approach,
some issues with evaluating leasing practices, and our case selection process. Table 1
summarises the case studies used.
Table 1: Case Studies on green leases
Office Retail
Leases for 500+ buildings, Sydney Interviews with Sydney BBP staff and
Australia Central Business District. Source: personal communication with Australian
Sydney BBP (Dawson et al.2014) property lawyer
9 (mostly BREEAM-rated) retail leases
across the UK (Source: Bright and Dixie
17 BREEAM-rated office building
2014); WICKED study of M&S green lease
UK leases across the UK (11 in London)
& MOU experience to date (MOUs in 65
Source: Bright & Dixie 2014
existing stores; green leases in 80 new
stores).

Green leases were first adopted in Australia and several of the authors have done
comparative research with the UK and Australia (e.g. Bright and Roussac 2012). The
property market is global, but commercial buildings are located and operated in
particular social and political contexts. In addition, office and retail tenants and
business models are different, even in portfolios held by a single property investment
firm or real estate investment trust.

Evidencing change in leasing practices is difficult. The agreed final lease will
generally be treated as commercially confidential and is unlikely to precisely mirror
precedent leases. Searching public registers of leases is not straightforward (Bright
and Dixie 2014; Dawson et al. 2014). A mixed methods approach is therefore
necessary to investigate leasing practices.

Evaluating greener leasing also requires a classification methodology, which can be

contentious. In the absence of any internationally standardised method of classifying
leases as ‘green’, any study must develop a methodology for measuring ‘green’.

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To some degree, the cases studied represent a convenience sample. However, as
better leasing is a developing area of research, the understanding of green leases is
necessarily limited to the new research done by a few key players. By working
across countries and cases, we aim to triangulate new research (e.g., the WICKED
study) within a broader context of existing work to generate additional insights.

CASE STUDIES
This section presents insights into Government and industry leadership and the
evolution of green leasing provided by the four case studies: (i) a study carried out by
the Sydney BBP into Sydney’s commercial office leasing market, (ii) a qualitative
assessment of Australia’s retail leasing market, (iii) a small scale review of green
clauses in UK office and retail leases and (iv) a case study of a leading UK retailer.

The Sydney BBP Office Leasing Study

In December 2014, the Sydney BBP published the first “BBP Leasing Index,” which
covers the office leasing market in Sydney central business district (CBD) (Dawson
et al. 2014). This index shows how Sydney’s office leasing market is being
transformed: over 60% of all leases signed in Sydney CBD in the last two years
(financial years 2012/13 and 2013/148) include green clauses, compared to 15% prior
to financial year 2008/09.

The BBP analysed leases from the public register in New South Wales (Thomas and
Dawson 2014), using Sydney BBP’s Model Lease Clauses (recognised as industry
best practice) to define what constitutes a “green” term (see Sydney BBP 2013). The
study sampled over 500 of the 7000 commercial office leases across Sydney CBD.
Premises were sampled randomly within six segments determined by size of tenancy
(small, medium, large) and the quality of the building (non-prime and prime grades),
with a target sample size of 100 for each segment. The sample leases were analysed
for the presence of one of 22 BBP Model Lease Clauses and a grading system was
used to calculate a ‘Model Lease Score’. Gradings were assigned based both on
‘clause breadth’ (the number of green clauses in the lease out of the 22 possible) and
‘clause strength’ (how binding the clause is, depending on whether a dispute
resolution process would be triggered by breach). These were given numerical grades
and then averaged to a total Model Lease Score for each lease (see Thomas and
Dawson 2014).

As an example, a lease with 15 of the 22 possible clauses would have a clause

breadth of (15/22) x100 = 68 (of 100). If 5 of these clauses would trigger dispute
resolution, the clause strength would be (5/22)x100 = 23 (of 100). These scores were
then averaged to a total Model Lease Score for each lease. In the example given it is
(68+23)/2 = 46 (of 100).

Using this method, the BBP study found that the average Model Lease Score pre-
2008/09 was 2 but had risen to 15.6 in 2012/13 and 2013/14. There was a
quadrupling of some form of green leasing over this period, and on average 27% of
the BBP Model Lease Clauses now appear in a standard commercial office lease.
Despite this growth, the clause strength still lags, indicating that although parties are

8
Financial years are July to June.

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happy to agree to collaborative frameworks they are still hesitant to risk dispute
resolution for breach of sustainability commitments.

The BBP model clauses, designed to be incorporated into standard leases, are
grouped under 4 key categories. Table 2 sets out these categories with some
illustrative examples (see Sydney BBP 2013).

Table 2: Sydney BBP Model Lease Clauses

Categories Examples of model clauses

To “cooperate with each other and act in good

faith to … promote the efficient use of resources
Cooperation and management
in the management and operation of the Services,
the Building and the Premises”

In relation to fit out and works to use reasonable

endeavours not to “interfere with or affect any
Recycling, waste and consumption
performance rating, NABERS rating or Green
Star rating for the Premises or the Building”

Landlord to “ensure that the Current Base

Specifications and standards Building NABERS Rating is maintained for the
Term”

Provisions on expert determination and rent

Costs and compliance
review

The study found that those relating to the first two categories (cooperation and
management; and recycling, waste and consumption) were most frequently included.
Nearly a quarter of all leases include a clause relating to securing/maintaining a
NABERS rating (National Australian Built Environment Rating System – the
operational performance rating for buildings). The next most common clauses relate
to information sharing, environmental sustainability (a high-level commitment
clause) and waste reduction.

The study highlights the importance of leadership in green leasing. It shows that the
major private landlords owning the majority of prime grade commercial premises
(who were also the first movers in integrating early green leasing concepts in their
precedent leases) have made green leasing their standard practice. Over 80% of
leases in prime buildings have best practice leasing in 2012/13 and 2013/14, and on
average these leases include nearly half of the BBP Model Lease Clauses (44%).

Evidence of green leases in the Australian retail market

Early qualitative assessments suggest that green leasing is not usual in Australian
retail markets. The Sydney BBP is initiating conversations with retailers but report
that there has been no significant greening of retail leases to date. Although further
study is needed, it appears this may be partly due to the strong consumer orientation
of state retail legislation and the fact that the retail sector is so highly price sensitive
and cost conscious (Professor W.D. Duncan, personal email communication with
Susan Bright,4 December 2014). Further, in most Australian jurisdictions the cost of

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capital improvements is not permitted to be passed on to retail tenants as outgoings
(Duncan and Christensen 2014).

Although a recent industry study of retailers in UK shopping centres found that

making retail outlets more sustainable was not a priority for most retailers (Whitson
and Crawford 2013), our case studies (below) show there are notable exceptions in
the UK and green leasing is found in UK retail property. More work will be needed
to explore the differences in policy environments and industry action that may be
influencing differences between the office and retail markets in both countries.

Evidence of green leases in the UK

Using a qualitative document analysis approach, Bright and Dixie (2014) examined
the content of 26 UK commercial leases (17 office and 9 retail) in detail to develop a
categorisation of ‘green clauses’. Sampling relied on leases available on the public
land register (registration being compulsory for leases of more than seven years) plus
7 retail leases supplied direct by a tenant. Sampling was also restricted to leases
registered in 2008 or later given the first known use of a green lease in 2007. The
sampling aimed for a mix of locations, landlords and tenants, but focused on
BREEAM (Building Research Establishment Environmental Assessment Method)
properties and on parties with public green commitments (including green lease
policies), in order to increase the chance of identifying green leases within such a
relatively small sample.

Bright and Dixie (2014) defined ‘green clauses’ as those which are ‘designed to
facilitate the property being used in a resource efficient manner and which … [take]
account of energy efficiency and other sustainability goals and measures’ (Bright and
Dixie 2014, p.10). Examples of categories include ‘Sustainability statement’,
‘Environmental plan’, ‘Alterations and Repairs’, ‘Data-sharing’ and ‘Environmental
improvements’. Based on their categorisation, they found that of the 26 leases
analysed, 15 (12 office leases and 3 retail leases) contained one or more green
clauses, varying significantly in their content, scope and legal commitment. The
most common clause related to data-sharing (12 leases), followed by those requiring
environmental considerations to be taken into account for alterations and/ or repairs
(10 leases), and those allowing service provision to take account of environmental
considerations (10 leases). Whilst their study identifies some use of green clauses in
UK commercial leases, it also highlights the challenge of accessing leases and the
difficulty of tracking the use of green leases in a consistent and statistically
representative and meaningful way.

The M&S Case Study

Drawing on early evidence from the WICKED project, a case study of M&S
illustrates the leadership role M&S and the UK BBP are playing in the roll out of
green leases in the UK retail sector. The case study is based on i) interviews of key
M&S staff (over the phone and via email, including the Head of Property Plan A,
Plan A Project Managers and a M&S property lawyer), and ii) examination of public
documents and internal M&S documents.

In 2013 M&S announced a new “green lease policy” - to include green clauses in
new leases and introduce green clauses through MoUs for existing stores - a

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commitment now incorporated into the M&S Plan A 2020 (M&S 2014a, p.29). The
M&S story suggests that strong leadership and concern about climate change are
important drivers for the environmental plans that fed into this leasing policy
(Vernon 2007). Plan A, launched in January 2007, sets out 100 commitments to help
M&S become “the world’s most sustainable retailer” (M&S 2014b) and is an
important part of its brand. The leasing policy emerged from a convergance of
drivers: that leases should not undermine Plan A; a desire to control the lease
drafting process to create more standardisation across the M&S portfolio; an
opportunity to save costs through enabling building improvements; and the
promotion of green leases by the UK BBP.

There is a key distinction between policy on MoUs and on green leases, which
reflects the important role of the UK BBP. Working together, M&S and UK BBP
launched an initiative to introduce green MoUs for 70 M&S stores already under
lease with BBP landlords (BBP 2013b). This ‘buy in’ from BBP landlords has meant
that the scope of the M&S MoU clauses (broadly based on the BBP green lease
toolkit (BBP 2013a)) is broader and more ambitious than the green clauses being
used in new M&S leases. Green MoUs with UK BBP landlords have now been
introduced for 65 existing stores.
By contrast, for new leases M&S has to negotiate with a much greater diversity of
landlords. M&S has developed a standard set of green clauses, informed by the BBP
“Green lease toolkit” (BBP, 2013). These include a general commitment to carry out
lease obligations with a view to promoting environmental best practice, but specific
obligations (e.g. for data-sharing and the development of an Energy Management
Plan) are limited to the common parts. Between January 2013 and December 2014
M&S entered around 80 new leases. Early indications are that most of these, other
than lease renewals, include green clauses (the long lead time for completing some
leases after signing agreements for lease means it will take some time for green
clauses to filter through to all new signed leases).

M&S’s experience suggests that the “light green” clauses based on the BBP toolkit
have proved largely uncontroversial in negotiations, possibly because of the role of
BBP in influencing standard industry practice and also M&S’s position in the
market, where its brand and size add value to landlords’ premises.

DISCUSSION AND ANALYSIS

The case studies reinforce a picture of industry and Government leadership
supporting the evolution of green leasing practices in the UK and Australia, with
increasing uptake in both countries. Evidence for this increase is strongest in the
office sector, particularly in Australia where the Sydney BBP’s quantitative findings
contrast with the absence of any evidence of green leasing in the Australian retail
sector. Qualitative feedback from the UK BBP, a recent study of UK retailers
(Whitson and Crawford 2013) and Bright and Dixie (2014) suggest that green leasing
may also be stronger in the UK office market than the retail sector. In contrast to
Australia, however, the UK case studies suggest at least some notable evolution of
green leasing practices in the retail sector, with M&S leading the sector in its public
commitment to green leases.

It is not yet clear, however, what influence green lease clauses have on energy
management practices.

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Firstly, it appears that the clauses being used are generally of the ‘lighter green’
variety (Bright 2008). ‘Dark green’ clauses (Bright 2008), especially those that seek
to address deeper structural problems and upgrade incentives in leases, meet with
stronger resistance. Both M&S and the Australian property company Investa have
attempted to include provisions within leases to permit the landlord to make green
improvements and recover the costs through some kind of amortisation charge or
service charge; but these attempts meet with much greater resistance than other green
clauses (Bright and Roussac 2012; personal communication (phone call) from M&S
property lawyer on 12 January 2015).9 The Sydney BBP study (Dawson et al. 2014)
shows that binding clauses, those with ‘teeth’, are relatively unusual, and this was
also true of the leases examined in the Bright-Dixie study (Bright and Dixie 2014).
Moreover, it is difficult to separate the effects of green clauses from other factors that
influence energy management practices. M&S highlighted the facts that M&S has a
sophisticated energy management system regardless of its leases, and that other
developments, in particular new Minimum Energy Efficiency Standards (MEES)
being introduced in England from 1 April 2018, are seen by landlords as drivers for
increased cooperation (DECC 2015). This view that MEES are a key driver for
landlord-tenant engagement is echoed by other anecdotal evidence received under
the WICKED project and it has been suggested that green leases may become an
effective tool for addressing the risk associated with MEES.

It is too soon to evaluate whether greener leasing practices are enabling more
effective outcomes. In any event, there is doubt about the extent to which leases – in
the sense of the formal documentation – make any difference to behaviour. The
people who manage and occupy space may never see the lease or even have access to
it (Bright and Roussac 2012), and C. Botten (Programme Manager, UK BBP) reflects
a view commonly expressed, that leases largely ‘sit in a cupboard for the length of
the tenancy’ (phone call of 18 December 2014). Nonetheless, green clauses do
provide an important framework for enabling conversations to happen in relation to
energy and environmental management. The Sydney BBP considers that green
clauses are ‘necessary but not sufficient, providing the framework for collaboration
and their value may be in the discussions that are held about the lease rather than the
lease itself’ (B. Thomas and E. Bailey, Sydney BBP, in a phone call 18 December
2014). This reflects the early experience of M&S where the existence of green
clauses has provided a framework and incentive for M&S’s Plan A Project Manager
to engage with landlords, meeting with them to discuss priorities for co-operation
‘under the guise of green leases’ (Plan A Project Manager, in a phone call on 12
January 2015).

CONCLUSION
These observations and early experiences indicate an increasing trend towards the
adoption of green clauses in commercial leases in Australia and the UK, with a view
to addressing the challenges of the ‘landlord-tenant divide’ and improving the
environmental performance of rented commercial property. Whilst evidence of
uptake in the UK remains patchy and largely anecdotal, the extensive analysis of the
Sydney office market for the first time provides data to support anecdotal
observations of such a trend.

9
M&S no longer uses this dark green clause.

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Current evidence in both countries and sectors – reflected in the scope of the case
studies – appears restricted largely to prime and/ or relatively new buildings.
Further research will be needed to extend evidence to other building types. The
WICKED project plans to address this gap by investigating a broader spectrum of
building and outlet types across the retail sector.

The M&S case study and early work on the WICKED project also highlight potential
opportunities for green leases to influence effective energy (and environmental)
management in commercial, and specifically retail, property. More work will be
needed to evaluate both qualitative and quantitative effects of green clauses, and how
they relate to other drivers.

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Electronic copy available at: https://ssrn.com/abstract=2713336