21st November 2018
It is fair to say that EU law only has a minor effect on the planning laws that govern England and Wales. Its main focus relates to environmental protection – of which the Waste Framework and Water Framework Directives form part – although there is evidently a degree of overlap.
Certain development proposals – such as large residential schemes, installations for intensive farming and theme parks – engage the Environmental Impact Assessment Directive which is currently transposed into law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 in England, and the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 in Wales.
They will, at the very least, require a screening opinion from the local planning authority where the likely environmental effects of the scheme can be assessed. Similarly, some forms of development may impact on certain endangered species or natural habitats which are afforded special protection in England and Wales through the Conservation of Habitats and Species Regulations 2017 that transpose the Habitats Directive.
The short term
The UK and EU have provisionally agreed there will be a transition or implementation period which will last from 30 March 2019 to 31 December 2020. During that period the UK and EU have broadly agreed that the UK will continue to be bound by EU law as if it were still an EU member state. This agreement is dependent on a withdrawal agreement where all EU environmental laws would apply until the end of 2020. If the withdrawal agreement is not agreed and ratified before 30 March 2019, there will be no transition and all EU law will cease to apply in the UK as of 30 March 2019.
The European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 on the day the UK leaves the EU. It ends the supremacy of EU law in UK law, converts EU law as it stands at the moment of exit into domestic law, and preserves laws made in the UK to implement EU obligations. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU.
The Act also enables UK laws to reflect the withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU, subject to the prior enactment of a statute by parliament approving the withdrawal agreement.
An example of this in action is the Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018. It uses powers in the European Union (Withdrawal) Act 2018 to make necessary changes to a raft of planning legislation, including the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, and the Environmental Assessment of Plans and Programmes Regulations 2004, S.I. 2004/1633. It also amends the Town and Country Planning Act 1990; the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008. It is designed to ensure that the law functions correctly after the UK has left the EU, but make no substantive changes to the way EIA, SEA or the other legislation operates.
The medium term
The UK and the EU have made statements about upholding environmental and planning standards, and the Prime Minister’s Mansion House speech on 2 March 2018 indicated the UK would maintain environmental standards “at least as high as the EU’s”. The EU’s chief negotiator, Michel Barnier, has emphasised the need for a “level playing field” in the realm of environmental standards. This approach makes sense because the principles on which those standards are based have served the development world well and ensured rational balanced decisions are reached and understood by the major European trading nations. Further, these checks and balances seek to safeguard environmental concerns in the built environment, ensuring the likelihood of litigation by aggrieved parties is minimised.
The UK Government’s 25 Year Environment Plan for England has indicated the UK will maintain high regulatory standards.
Nevertheless, assuming the withdrawal agreement is ratified, there are some legal issues in the medium term that are likely to be of importance to businesses and public bodies for whom environmental standards are of particular importance.
The issue of a non-regression clause has been raised in the withdrawal agreement negotiations. A non-regression provision forms a component of the single customs territory that would come into force as part of the withdrawal agreement’s protocol for Northern Ireland / Ireland. This mechanism is designed to prevent the UK or the EU reducing their regulatory standards to obtain a competitive advantage, but it is not comprehensive in scope. It does not deal with the post-transition or post-backstop period, about which few details on the extent of agreement are clear. The outline of the political declaration on the future relationship indicates there ought to be a ‘level playing field’ for ‘open and fair competition’ including environmental standards and climate change. What we do know is that the Prime Minister has indicated the UK would not reduce its environmental standards in the event of a no-deal scenario.
Consequently, how the UK and EU remain on top of and cooperate on environmental regulatory standards over an extended period of time will be an important aspect of how the post-Brexit legal environment develops. There is certainly scope for change because of the extent of environmental legislation. The Department for the Environment Food and Rural Affairs (Defra) has identified around 100 statutory instruments being required in order to make sense of regulations that refer directly to EU standards or EU institutions.
Environmental enforcement and accountability
Unanswered questions have been posed by business and environmental interest groups about the scope and powers of a UK environmental ‘watchdog’ to take over enforcement functions. Compliance oversight and enforcement against the UK Government and devolved institutions are now exercised by the European Commission and applied by the European Court of Justice of the European Union. In other words, it is important that there is no vacuum created when the UK is no longer a member state and the UK Government is no longer subject to the EU’s jurisdiction.
The UK Government is yet to clarify precisely how it intends to comply with its own environmental regulations (and the repercussions for failing to do so). The suggestion of enforcing the UK Government’s obligations by introducing a broader power of judicial review has been rejected by a number of informed commentators, including the United Kingdom Environmental Law Association. In May 2018, the Government launched a consultation on the contents of the Environmental Principles and Governance Bill. Subsequently, the European Union (Withdrawal) Act 2018 was amended prior to Royal Assent on 26 June 2018 to require the Secretary of State to publish draft legislation within six months of Royal Assent to the European Union (Withdrawal) Act 2018 that:
In conclusion, there is unlikely to be any direct and immediate impact on the development sector in the short term as a result of Brexit, provided there is a concluded and ratified withdrawal agreement. Investment has continued as developers and investors have been unwilling to wait for a relaxation of environmental standards or a Brexit dividend where the likelihood is that very little will change in the regulatory arena in the short term.
Moreover, the shape and scope of the overall deal and settlement with the EU across many sectors and industries is likely to influence the extent to which Brexit will mean a change to environmental and planning legislation in England and Wales in the medium term.