What Brexit means for Planning Law in the UK

Richard harwood

Richard Harwood QC

Britain leaving the European Union has various potential consequences for planning law in the UK, but it is the more indirect effects of Brexit which may prove to be the more substantial.

European Union law’s impact on the UK planning system can be grouped into the following categories:

(i) Alterations to planning legislation: these are most obviously the Environmental Impact Assessment Directive, the Environmental Assessment of Plans and Programmes Direction (“the Strategic Environmental Assessment Directive), the Birds Directive (covering Special Protection Areas), the Habitats Directive (Special Areas of Conservation) and the Environmental Information Regulations;

(ii) EU legislation which has to be taken into account in making planning decisions: the Waste Framework Directive, the Landfill Directive, the Control of Major Accident Hazards Directive, the Habitats Directive (in respect of species);
(iii) Systems of environmental regulation which bear on planning: such as the Industrial Emissions Directive (containing pollution control), waste legislation;

(iv) European legislation setting standards which require changes to what we build or how we build it: for example, climate change controls on greenhouse emissions, low carbon technology, water quality, air quality. These have for example required the closure of coal fired power stations (by the Large Combustion Plant Directive) and the construction of major sewage works (the Urban Waste Water Treatment Directive).

Dramatic changes are though relatively unlikely. In at least broad terms, this legislation covers areas which regulated domestically or which would need to be controlled in some form. Many are subject to international conventions to which the UK is a party. For example, environmental impact assessment, strategic environmental assessment and access to environmental information are all required by the United Nations Economic Commission for Europe’s Aarhus Convention. The UK could withdraw from that Convention, but since its international approach will be as a trusted partner, rather than North Korean isolationism, we are unlikely to be tearing up any other treaties that we have to hand. Environmental legislation will be a factor in the UK’s negotiation of its future relations with Europe. Many Special Protection Areas for birds are also wetland sites under the Ramsar Convention although that is less prescriptive than EU law. One aspect of the single market is that countries should not have an unfair competitive advantage by, for example, despoiling their environment. So the European Economic Area Agreement which binds Norway, Liechtenstein and the footballing giants of Iceland incorporates a considerable number of environmental directives, including EIA, SEA, water and waste but not, for example, nature conservation.

Questions will therefore arise whether the UK should continue with certain European environmental laws, continue similar approaches but under domestic and any international law, or scrap provisions entirely. It may be that principles remain, but the detail is altered over time to meet the different requirements of the UK’s four nations. If regulations based on European law continue in force then the role of the Court of Justice of the European Union will need to be addressed. To what extent will the UK interpretation of European Union concepts (such as the definition of waste) follow the European Court’s view?

The greatest change may be to standards and the timescales for achieving them. Whilst no one wants poor water or air quality, what level should be attained and when that should occur is always more debatable. Alteration to either may affect infrastructure requirements.

A bigger issue does though hang over planning and planning law than its European law aspects. Quite simply, what else are we going to do? The challenges which Britain faces have not gone away, but if anything become more pressing – homes need to be built and jobs created. The economy needs assistance in the more uncertain times whilst Brexit is negotiated. Britain outside the European Union must create and deploy all of its advantages. From the planning perspective that is not only enabling development to take place but preserving and strengthening what makes Britain such a great place to live and work. The social, economic and environmental dimensions of sustainable development are all needed for Britain to compete and thrive in the world. The process of planning law reform needs to continue. As well as the topics already outlined for the Neighbourhood Planning and Infrastructure Bill this should include further reforms of development management, local plan reform and the comprehensive codification and consolidation of compulsory purchase and compensation law. Whilst Europe will take up a great deal of political and legal effort in the next few years, the domestic agenda cannot be left and cannot wait.

Richard Harwood

Richard Harwood OBE QC is a leading planning barrister at 39 Essex Chambers and acts for developers, public authorities and interest groups. A case editor of the Journal of Planning and Environment Law, Richard is the author of several books on planning law. He was appointed Queen’s Counsel in 2013 and awarded an OBE in 2014 for services to planning and environment law decision making.

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