Brexit and the implications for planning: some reflections as we await the outcome of the Supreme Court case

Awaiting the Supreme Court’s Judgment

After the political and constitutional earthquake of the 52-48 % referendum result on 23 June (on a turnout of just over 72%), the implications of Brexit are still of course very uncertain. The outcome of the Supreme Court’s deliberations on the article 50 issue should be known early 2017 (see here for the Supreme Court website for details of the case). The complexity of the legal arguments was at times a little bewildering. This resulted in the live coverage perhaps not being quite as digestible as some daytime TV! However, it was a manifest demonstration of the rule of law in action.

Amongst the plethora of arguments employed by both sides, the Government argued that the entire case was a "constitutional trap" resulting in the judges wrongly being asked to “make up” laws themselves. However, a repeated theme of those challenging the Government’s reliance on prerogative powers was the lack of evidence that ministers ever had the prerogative power to take away the right of EU membership. The Judgment will be fascinating in respect of the outcome and implications of this of course, but also the reasons for it and the difference, if any, between the approaches and opinions of the 11 Justices.

Meanwhile, some press reports (we now hear e.g. reference to the cost of Brexit being £50 billion (see here), do not always help anyone attempting to understand the possible consequences of Brexit generally, let alone for planning. However, there has to be some recognition that Brexit will impact on the legal and economic elements relevant to planning and the environment.

The PM maintains that she will still press ahead with triggering article 50 in March next year, notwithstanding the ongoing Supreme Court case. Meanwhile, the papers are again reporting (on 17 December 2016) that a conservative MP has proposed a Bill that would legally force the Government to trigger article 50 by the end of March (see also here).

The outcome for environmental legislation

Whatever the outcome of the Supreme Court litigation, it seems almost inevitable (in the absence of another equally far reaching political earthquake) that the UK, certainly England, will leave the EU. The main planning legislation is innately domestic. However, it operates within the confines of and is controlled and influenced by environmental legislation, much of which is derived from Europe. This includes treaties (primary legislation) and directives, regulations and decisions (secondary legislation, which is derived from the principles set out in the treaties). The main directives are the Environmental Impact Assessment (EIA) Directive, the Habitats and Bird Directives, the Air Quality Directive and the Water Quality Directive. The revised EIA Directive is required to be implemented by May 2017 and will therefore still have to be acted on.

It might have been thought that, on exit, the directive, regulations and treaty provisions would no longer apply. However, the aim of the Great Repeal Bill will be to end the authority of EU law by repealing the European Communities Act 1972 on the day of exit, giving direct effect to all EU law, but at the same time converting all of its provisions to British law.

The PM says there will be an opportunity to scrutinise, amend, repeal or improve any aspect of EU law in the future. There will almost certainly be a huge number of requests for changes from MPs, peers and third parties with. Quite how this will work in practice is far from clear. What is for sure is that it will be a mammoth task to disentangle the parts of the EU law that the Government wants to keep. That exercise could itself be highly controversial and complex. It will only be over time that there will be repeal of those parts of the European legislation that “unwanted” elements will be repealed. It is also likely that a degree of flexibility my be added to certain provisions – see Reuben Taylor QC’s blog of 17 Nov 2016 on air quality, in which he predicts that this is likely in respect of the legislation applicable to that; see also James Maurici QC’s blog of 20 Sep 2016 relating to air quality. Such flexibility would be seen by some as a sensible approach that will enable more projects to proceed, whilst others will see it as the weakening of environmental protection. If the economic climate is as difficult as some predict for the UK in the post-Brexit future, the pressure for such flexibility could well be very great and the implications of such changes will need very careful scrutiny.

Lessons for post-Brexit Planning

Given this uncertainty, it is interesting to note that the recent event on post-Brexit planning, held by Planning magazine, identified three lessons to be learnt:

1. Planning law based on European legislation is unlikely to change very soon;
2. However, the application of some of those laws might be altered by the UK’s departure from the European Union; and
3. Transport infrastructure projects that would have been supported by European treaties could be called into question.

The factors above indicate why lessons 1 and 2 are likely to be the case. With regard to the third lesson, infrastructure schemes such as HS2, the northern rail hub and the A14 trunk road improvements helped the UK government to meet its treaty commitments to promote trans-European networks. The treaties helped provide the legal basis for these schemes, and ensured that they were a priority for UK government and European funding. At the Planning conference there was debate and disagreement as to implications for such projects.

This again reflects the cloak of uncertainty that prevails. But at least we have the certainty of the Judgment of the Supreme Court being given in 2017.