Implications of Brexit on the system of planning The Great Repeal Bill
On 23rd June 2016 the UK voted to leave the European Union ("EU"). Article 50 was triggered on 29th March 2017, thus beginning the process of leaving the EU. This article considers the implications for the planning system of the UK's departure from the EU. Which aspects of planning law/policy could be affected by Brexit? The planning system in the UK is largely legislated through domestic legislation, such as the Town and Country Planning Act 1990, but the main influence of EU law on planning is in relation to the requirements for the environmental assessment of development projects and policies. There are three key EU directives, namely the Environmental Impact Assessment Directive 2011(the ‘EIA Directive’), the Strategic Environmental Assessment Directive 2001 (the ‘SEA Directive’) and the Habitats Directive 1992 (the ‘Habitats Directive’). These EU Directives have been transposed into UK legislation primarily by way of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (as amended) (the ‘EIA Regulations’), the Environmental Assessment of Plans and Programmes Regulations 2004 (the ‘SEA Regulations’) and the Conservation of Habitats and Species Regulations 2010 (the ‘Habitats Regulations’) respectively. Separate enabling legislation has been introduced in Wales and Scotland. The EIA Directive was amended by the EIA Directive 2014 which member states must implement by May 2017, and which the UK will still have to implement too given that it is before the two-year limit of June 2018. The extent to which these provisions remain after Brexit depends on the terms of future treaties negotiated, if the EU requires certain regulations to be enforced as pre-requisites to other rights. Once the UK is no longer a member of the EU, regulations and treaty provisions would no longer apply to it from that point forwards. However, the regulations (through which the Directives have been imposed) were enacted under the European Communities Act 1972, which, it was announced on 2nd October 2016, will be repealed (discussed further below). Outside the remit of EU Directives, future governments could amend or revoke legislation dealing with environmental issues. There may well be a tendency over time to weaken these as the superior obligations requiring them to be adhered to would no longer exist, and there would be economic pressures and temptations to do so. The UK would have a choice: mirror the EU protections (perhaps as a condition of free movement of goods and services) without having a say in their development, or fall behind with the protection of people and the environment. The UK could introduce greater protection, of course, but that could still happen while remaining in the EU. It must also be remembered that other, international treaties exist, which will govern the way the UK will legislate on environmental procedures. These include the Aarhus Convention which grants the right to the public to access environmental
information and participate in environmental decision-making, the Kyoto Protocol, which commits its members to reduce greenhouse gas emissions and the Paris Agreement which also regulates environmental measures in relation to climate change. In addition, the UK is likely to want to continue to regulate the environmental impact of large developments, and so seek continuity in the existing system. The regulations have been in force for over a decade and are now embedded in policy-making and the decision-making process. Many of the issues which may affect the planning and environmental position in UK law, are those which affect other sectors. For example, following the UK’s exit from the EU, the UK will have to bear the cost of developing its own regulatory system or, potentially, rely on EU policies/documents without having a seat at the table. This will largely depend on the negotiations and terms on which Brexit is settled. The Great Repeal Bill The Great Repeal Bill will repeal the European Communities Act 1972, and it is doing so through so-called "Henry VIII" clauses. These will bypass the need for the changes to go through Parliament. However, the Bill's purpose is to effectively lift EU law and write it into UK law pending the vast tranche of amendments that will need to be made in light of Brexit. The problem that the UK is left with is, in the absence of the EU and the ECJ, identifying who the regulators will be for the relevant industry or sector, ranging from banking to environmental issues. There are over a thousand laws affecting environment and rural affairs which derive from the EU. We run the clear risk of “zombie” laws which the UK cannot apply or be enforced effectively. For example, issues such as air quality are currently regulated by EU law and there is the possibility that the Great Repeal Bill could be used to remove significant environmental protections. Standards may be relaxed and exceptions could be introduced, making it easier for developers to comply with new regulations, to the detriment of the environment. It is highly possible that, eventually, the scope of the law will change; for example, the threshold for developments requiring an EIA to be submitted may be increased so that only the largest projects need to submit an assessment. It would, however, be a matter of political decision as to how the UK addresses this. For the time being, the Great Repeal Bill provides that the UK will preserve EU law as it stands at the moment it exits the EU and until alternative legislation exists. However, many developers would welcome a relaxation of the environmental laws, and it may be that without a top-down EU-centralised process that political motivations will change the landscape of the legislation, and the country. For example, the requirement for EIAs on large projects can easily run into six figures, imposing a substantial burden on developers, while habitats and birds protected by respective regulations can be a bar to potential, lucrative development.
Changing these provisions will be no small feat, however, and drastic change would not stand without recourse through the democratic process. It also needs to be put into the context of Brexit; many commentators have pointed out that in the next two years the government and its ministers will have more pressing issues to contend with before they can turn their attention to environmental change. If we are going to see a noticeable 'watering-down' in environmental protection, this is likely to come after the process of leaving the EU has been completed, which may take years. What the Bill means for applicants and local authorities handling planning applications The Bill, by virtue of its very purpose, will mean 'business as usual' in many respects. The main aim of the Bill is to ensure continuity of the legislation which has been passed down into UK law. There has been no indication as to what changes may be made, however fears have been expressed by some environmentalists, while other experts question how likely it is that current provisions under EU law will materially affect developer and local planning authorities in the next couple of years. The UK's planning system is governed by domestic statute and policy. The impact of Brexit and the Great Repeal Bill will only be felt by local planning authorities in the applicability of measures, for example if the threshold for an EIA assessment changes. By the same token, developers will notice the changes where measures are relaxed so as to free up development, or in the alternative, hinder it if measures are tightened.
Contact:
Antonia Frangakis Paralegal: Planning T: +44 (0) 20 3755 5453 E: antonia.frangakis@howardkennedy.com
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