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Habitats protection after Brexit

EU law on the protection of Habitats in the form of the Habitats and Birds Directives has had a huge impact on our environmental law see most recently the Supreme Court’s decision in R. (Champion) v North Norfolk DC [2015] 1 W.L.R. 3710. The protection that these laws confer is very strong indeed. With Brexit I can only see a weakening of these laws for a number of reasons:

  1. If we were to end up with something like the Norway/EEA model while many EU environmental laws are required to be complied with by EEA states the Habitats Directive is not one of those laws that EEA states must currently comply with;
  2. In the recent past the Habitats and Birds Directives have been the subject of reviews amidst Government concerns about over-implementation: see here. Post-Brexit the need for growth in the economy is going to be all the more important, and that may again not bode well for strong EU habitats laws remaining in place;
  3. All SPAs and SACs in England and Wales are also SSSIs (see R. (Aggregate Industries UK Ltd) v English Nature [2003] Env. L.R. 3) and this domestic protection would remain in place even if all EU Habitats law was repealed overnight. It would continue to provide a level of protection but not provide for appropriate assessments, IROPI etc. Thus in terms of planning under the NPPF it is provided in para 118 that “proposed development on land within or outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest (either individually or in combination with other developments) should not normally be permitted. Where an adverse effect on the site’s notified special interest features is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of Sites of Special Scientific Interest”. Whilst this is itself a strong policy test it does not match that provided for in regulations 61 and 62 of the Habitats Regulations and which implement Articles 6(3) and (4) of the Habitats Directive.