The Impact of Brexit on UK Planning Law and…

Impact of Brexit on Climate Change and Environmental Assessment

In this second Landmark blog post, I explain why there does not need to be any automatic consequences of Brexit for UK planning and environmental law. To illustrate this I consider some of the components of environmental law: Climate change, EIA, SEA, Aarhus Convention and Habitats conservation and the choices the UK might make as to the nature of the future relationship it negotiates with the European Union.

Existing UK Climate Change Legislation and Policy

The Climate Change Act 2008 establishes a legally binding target to reduce the UK’s greenhouse gas emissions by at least 80% in 2050 from 1990 levels. This objective was partnered by measures in the Planning Act 2008 to ensure that planning specifically addressed climate change. Thus, section 19 (1A) of the Planning and Compulsory Purchase Act 2004 (added by the Planning Act 2008) requires local planning authorities to include in their Local Plans “policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change”. Tackling climate change is now a key priority in national policy both in spatial planning and in decision taking. Paragraph 93 of the NPPF states: “Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions”. A component of the definition of sustainability is “moving to a low carbon economy” (NPPF para 7).

Existing UK Practice on Environmental Assessment

Sustainability appraisal is the process by which the effects of plans and programmes in the UK are assessed in the course of being made. This assessment process includes assessment of climate change impacts. Sustainability Appraisal is intended to implement the requirements of the SEA Directive but it is nonetheless a process designed by domestic legislation. Environmental impact assessment is the process by which the environmental effects of plans and projects on the environment are assessed. Again, this is a process governed by (hundreds of) domestic regulations which are intended to implement the EIA Directive in various different fields of planning. The EIA process ensures that climate change impacts are required to be assessed in relation to major developments.
Thus, each process, although European in origin, has been integrated within the UK system of town and country planning. In turn, the requirements of the EU directives supplement rather than replace the pre-existing domestic systems. It is fair to say that in some areas (minerals development for example) EIA has resulted in a lot more detailed environmental assessment than was required, say, in the 1990s before EIA had much influence. However, the more detailed assessment now undertaken is not entirely due to the impact of the directives as much as to an overall domestic and international trend of increasing concern for the environment.

Effect of Cessation of Influence of EU Directives

Supposing a ‘hard Brexit’ in which the supremacy of EU law and the principles of direct and indirect effect (the Marleasing principle) ceased to apply, then some of the underpinning of the detailed EIA and SEA regimes that now pertain in the UK would be withdrawn. The cessation of SEA and EIA Directives would not of itself immediately lead to drastic change since the UK implements their regimes through domestic law. In time, however, in the event of such a “hard Brexit”, it would be open to the UK to amend its procedures so as to reduce the extent to which these regimes require assessment of and consideration of environmental factors. It would however be a matter of political decision as to whether the UK did adopt that course.
Tackling climate change takes a central place in the UK’s legislative and policy schemes on planning. This has not been as a result of being in the EU, but as a result of the significance of the issue. At the same time, climate change can sometimes be of peripheral significance in practice when local authorities or the Secretary of State are tasked with considering plans or planning permission. If that is the case, then again, that is not a consequence of EU membership. In my view the impact of leaving the EU is more likely to be felt in more obscure parts of EU environmental law which will be easier prey for those who regard such legislation as unnecessary or onerous.
What political choices might the UK make as to its continued harmonisation or divergence? This of course is a matter for speculation, and for debate. However, for the UK to depart significantly from existing practice on environmental assessment and tackling climate change would be against the domestic and international grain. Internationally, the RAMSAR convention, the Espoo Convention, the Aarhus Convention all expect environmental assessment and public participation. I consider it likely that in the event of leaving the European Union (whatever the terms) the UK will chose to retain the existing systems for environmental assessment in the immediate future without significant adjustment. It is instructive to note that the UK has recently loosened the thresholds for requiring EIA of a development, which demonstrates that as a matter of domestic choice the UK’s standards exceeded those required by the EU (so the procedures adopted were not simply by virtue of being compelled). There is no reason to assume the automatic consequence of leaving the EU would be to diminish the procedural protections afforded by EIA and SEA further. Leaving the EU may afford an opportunity for a better system in the long run, since some of what is produced by developers pursuant to these directives and some of the concerns of public authorities are focused more on attempts to fend off legal challenge than to aid assessing environmental impacts.
I do consider that there is a risk the UK will in time fall behind EU legislation on planning if some form of harmonising framework is not retained. The EU will continue to pass environmental legislation, including revisions to the EIA and SEA directives while the UK’s legislators may be too consumed with fire-fighting the legislative consequences of Brexit to match the EU in terms of progressive legislation.
One significant issue in relation to environmental law as a whole, and particularly in relation to climate change, is that EU regulations unlike directives do not require to be implemented into UK law. EU regulations, once passed at EU level, apply automatically across every EU country, without having to be passed as law at national level. This means that in a “hard Brexit” scenario where direct effect no longer applied (and there was no saving provision) the force of these regulations would fall away. Again, it seems to me likely that at least as a matter of domestic law, if not also as part of a withdrawal treaty, the UK will (and should) pass some sort of transitional saving provision to maintain the continued operation of EU regulations either through the continued operation of direct effect, or through an equivalent mechanism following Brexit. Examples of regulations which would be affected are those on emissions trading and on greenhouse gas monitoring. A full list is on European Law Monitor’s¹ website.

Aarhus Convention

The UK’s ratification of this Convention will be unaffected by departure from the EU. However, the EU is itself a signatory to that convention and has passed a number of Directives which give effect to its three pillars (public participation, access to information and access to justice). The Aarhus Convention extends far wider than the EU. To some extent it reflects what had already become common practice, while it has to some extent pushed the EU and its member states a bit further on procedural aspects of environmental law. The Aarhus Convention has largely been implemented into UK law already (in part because it is a convention which the UK has ratified, rather than because the EU ratified it). Access to information is facilitated by the Environmental Information Regulations; public participation measures inherent in our planning system are concordant with the demands of the Aarhus Convention; access to justice has been facilitated by the emergence of protective costs orders and to a limited extent by “costs capping orders” under sections 88 to 90 of the Criminal Justice and Courts Act 2015. If the EU Directives which seek to implement the Aarhus Convention were to cease to have effect, there would be little immediate impact on public participation and access to information. The one area in which the UK has been resistant to implementation has been on access to justice. Without EU Directives re-enforcing the Aarhus access to justice pillar, it may be that the government takes the opportunity to treat its Aarhus obligations in a “softer” way and rein back on some of the measures so far taken to limit costs exposure of claimants.

Detailed Example of Impact of Hard Brexit with Regard to Habitats Directive

In order to explore the potential impacts of leaving the EU further, I now turn to consider in more detail what the landscape with regard to the Habitats Directive might look like after an exit from the EU.
I stress it is for example open to the UK to seek to depart the EU on terms that maintain the application of all EU environmental law. However, suppose for argument’s sake that in some form of “hard Brexit”, the Habitats Directive ceased to apply to the UK. In England and Wales the Habitats Directive has been implemented primarily through the Conservation of Habitats and Species Regulations 2010 as well as several other sets of regulations specifically concerned with offshore petroleum; offshore marine conservation etc. Further regulations implement the Habitats Directive in Northern Ireland and Scotland (there have been over 30 sets of UK regulations in implementation of the Habitats Directive, while occasional provisions have been inserted to implement the Directive in hundreds of acts and regulations. All the domestic regulations take effect as a matter of domestic law of England, Wales, Northern Ireland and Scotland as the case may be. Short of repealing the European Communities Act 1972 without saving provision (which I discount as improbable) the domestic regulations would continue to have force even in the event that the Habitats Directive ceased to have effect in the UK (though there would be some complexities arising- see below).
There is much international environmental law outside of EU law which would also continue to apply. The Bern Convention of 1979 is a parent to the Habitats Directive. The UK is a signatory to the Bern Convention, and is obliged by it to take measures to conserve habitats².
I turn to consider the practical effects of the Habitats Directive ceasing to apply to the UK in the (assumed) event of a ‘hard Brexit’.

Designation of Protected Sites

The UK is currently obliged, pursuant to the Habitats Directive to designate Special Areas of Conservation which are intended to form part of an EU-wide coherent European ecological network called Natura 2000. This EU-wide programme of designating sites has probably been more ambitious and effective than if member states had been left to devise their own networks as a matter of domestic competence. This is not least the case because many threatened species, as well as some threats to bio-diversity (eg. alien species, climate change) cross borders. The UK has designated around 9% of its terrestrial area as SACs, this being one of the smallest of any EU nation (Slovenia, the greatest, has designated 38%).
Exiting the EU on terms in which the Habitats Directive ceased to apply would have no immediate impact on the existence of the protected network of sites because sites which had been designated as SACs or SPAs would continue to be protected by the Habitats Regulations and correlative policies as a matter of domestic law to effectively the same degree as if the Habitats Directive applied. Furthermore, every site designated pursuant to the Habitats Regulations is also a SSSI under part II of the Wildlife and Countryside Act 1981 (WCA 1981), which is part of domestic law. While SSSI is a less powerful designation than SAC in protecting against development, it provides a fall back and would mean that there was no simple means of getting around the protections afforded to designated sites.
By way of analogy, about 80 wetlands are designated pursuant to the RAMSAR convention of 1973. Although this convention has no statutory basis in domestic law, each of these is also a SSSI (and therefore subject to the provisions of Part II of the WCA 1981) and most are SPAs under the Birds Directive (and therefore subject to the Habitats Regulations). National policy also covers RAMSAR sites.
If the Habitats Directive ceases to apply, it is possible that extension of the existing network of protected sites might halt. However, while the UK is currently undertaking work on the designation of new marine sites, I understand that significant advancement of the existing network of terrestrial sites is in any event unlikely. Indeed the Commission’s Natura 2000 January 2015 Newsletter stated that the UK’s network was nearly sufficient. If EU law ceased to apply to Habitats, then such limited encouragement and compulsion as is provided by the Commission to further designate SACs would evaporate, but the Commission has never ardently compelled the designation of sites under the Habitats Directive or the Birds Directive (so the practical consequences may well be limited). Any planned extension of the network of conservation sites might well proceed in any event by designation of the site as a SSSI.
Furthermore, exit from the EU may not be all one-way. If the Common Agricultural Policy were replaced, there is the possibility that some of the environmentally destructive consequences of agricultural subsidies could be tackled with it. For example, it might be that former agricultural land could more realistically be given over to conservation³.

Impact on Developers and Development

If the Habitats Directive were to be taken out of the framework of UK law, there would be no automatic impact on the rules governing development. The Habitats Regulations implement the requirements of the Directive, in some cases going beyond the supranational minimum standards imposed by the Directive. Those regulations are partnered by the WCA 1981 and other domestic provisions, as well as domestic policy. The mere removal of the underlying directive would have little immediate impact. Of course departure from EU environmental law does remove a fail-safe in the long run (see below). The continued operation of the regulations without the underpinning of the Directive and the EU institutions would not be without issues that required to be addressed: enforcement powers and mechanisms such as those of the EU Commission would be withdrawn and require replacement; some aspects of interpretation and effect of domestic regulations refer back to the Directive and would need to be amended or addressed. For these kinds of reasons some sort of sweeping saving provision would be far more sensible as an interim measure than hoping to go through with a tooth comb every one of the thousands of regulations that refer to EU law and amend them.
If EU environmental law ceased to apply in any form, the possibility of references to the ECJ or infraction proceedings by the Commission would also evaporate. The diminishment of these enforcement mechanisms could (unless replaced) have some impact on the efficacy of the Habitats regime. Certain legal challenges would no longer arise if the Marleasing principle (that domestic regulations must, as far as possible, be construed consistently with the purpose of the Directive they implement) no longer applied. Again that might in isolation diminish the efficacy of the regime. That said, it is likely that courts would continue to have regard to EU law to understand domestic regulations passed in implementation of it, so any changes may not amount to much in substance.
When EU Directives are amended an issue would arise as to whether the UK sought to keep pace or not. The automatic legal obligations which have in some cases proved to be a spur to legislation would be removed, so that inertia might have greater force.

Protection of Threatened Species

The Habitats Directive also provides a general system of protection for European Protected Species listed in Annex 1 to the Directive. The Directive, requires member states to implement measures to prevent the deliberate, and for some species, the unintentional capture or killing etc. of protected species. Again, these provisions have been implemented domestically and any immediate changes are unlikely to be dramatic.

The Resource Implications of Changing the System

If the Habitats Directive ceased to apply, it would in the long run be open to the UK to change the domestic system that currently implements it. While there would be pressure from developers to do this, there is also political sense in maintaining harmony with the EU over a system which needs to be international to be effective.
The resource implications for replacing the former scheme could be very onerous and even more onerous on the devolved administrations in Scotland, Wales and Northern Ireland. There will need to be careful amendment of swathes of legislation. For example, regulation 3 of the Conservation (Natural Habitats etc.) Regulations 1994 (which still applies in Scotland) provides for Scottish ministers to carry out their functions under a whole host of statutory provisions in a manner which secures compliance with the Directive. Amending even this provision could be complex. Since the Scotland Act 1998, the Scottish Parliament has assumed legislative power over local government, planning and the environment and the Scottish Executive holds most of the functions of the former Secretary of State for Scotland. Yet at the same time, international and EU relations are reserved to Westminster. In practice environmental law and policy-making is governed by concordats between the two parliaments. Thus, Westminster may agree a Withdrawal Treaty which impacts on EU law in Scotland, but revision of implementing regulations to make sense of that change will be within the competence of the devolved Scottish administration. There is potential for conflict, and complexity and a significant drain on resources. Similar, but different complexities will arise in relation to Wales and Northern Ireland. Even minor deviations from the Habitats regime, though possible, are likely to be very complex, and there will be scant resources for achieving them.

Summary of Position on Habitats

If Environmental Directives as well as the principles of the supremacy of EU law and of direct and indirect effect ceased to apply to the UK, the immediate consequences for habitats conservation would be limited because domestic law already implements European law and it would continue to do so. The consequences would only start to be felt if the UK government subsequently decided to diminish protection of habitats. There is an argument however that there would be a strong pull towards retaining the status quo since the existing system provides a workable balance between conservation and economic interests and is strengthened by its connection to an international conservation programme. The House of Commons Environmental Audit Committee stated in its Third Report of Session on 23 March 2016:

“The UK Government’s view, as expressed to us by Rory Stewart MP, Parliamentary Under-Secretary at DEFRA, was that, in general, the correct balance between common EU frameworks and distinct national approaches had been broadly achieved in the environmental sphere. He said, “We have not concluded that we need to return competencies from the European Union in relation to the environment.”

At the same time, there might be opportunities arising to strengthen UK conservation efforts- for example from the cessation of the Common Agricultural Policy.

Effects of Brexit on Wider Environmental Law

The effect on the legal landscape would not necessarily be an even one, however. I have not attempted a review of the whole scope of EU environmental law since to do so would require an extensive paper addressing biodiversity, animal welfare, product regulation, labelling, water protection, air pollution, noise, climate change, energy and waste (among other areas). It may be that in other areas where domestic legislation has not implemented EU law, or where the profile of that law is not as high as the Habitats Regulations, there will be more scope for the UK to apply weaker domestic standards than would pertain if it remained a member of the EU.

¹European Law Monitor

²However, unlike the Habitats Directive, it contains no mechanism for implementation: it is a form of “soft law” whose implementation is left to the signatory states. It is not partnered by any funding (unlike the EU Directives which are partnered by the EU Life programme and CAP rural development budgets) By contrast, while the Birds Directive and Habitats Directives have not been implemented with complete vigour by EU institutions, they have proved to be much more effective in achieving results than other forms of international obligation.

³See for example this summary in George Monbiot’s article in May 2013.