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Brexit: What does Brexit mean for planning and environmental law?

Planning & environment Print publication

24/06/2016

Planning and development

On first glance, there appears little direct impact on planning and development from the UK exit.  However, subsequent changes within the UK economy due to its altered position within global financial markets and the international business scene will be a key determinant on the level of development going forward.  Any adverse economic reaction is likely to lessen construction, limit ongoing development, and reduce planning applications.  Correspondingly, the loss of EU funding will certainly be felt in the delivery of major infrastructure projects (such as Crossrail and HS2) – unless subsequent exit negotiations ensure continued provision.

EU Directives incorporated into UK law relating to environmental assessments on development plans and major planning applications could now be abandoned.  This may mean that Environmental Impact Assessments (as required for major development applications) and Strategic Environmental Assessments (needed for local and neighbourhood plans) will either no longer be required or – more likely – be subject to altered thresholds.

Dependent on how the Government exercises its ability to control immigration from EU Members States, it seems that predicting demographic change will be easier.  The pressure for increased housing and development on green belt land may lessen, with housing forecasts generally becoming more predictable and less unreliable.  For developers and builders, construction costs are likely to increase, with EU migrant labour becoming less available and not as heavily relied upon as previously.

Environmental law

The environmental sector will feel considerable impact from the leave vote, simply because approximately 50 per cent of our environmental law originates from Europe.  This includes law on water, air quality, waste, chemicals, noise, energy efficiency and climate change.

There is considerable uncertainty regarding both how long it will take for the UK to withdraw and what type of relationship / agreement will be established going forward.  An average of two years for the withdrawal seems likely, during which time the status quo on environmental matters is expected to continue.  If a bespoke arrangement is implemented, there may be some continuing relationship and an ongoing requirement for the UK to apply much EU environmental law, but without having the ability to influence its development.  Ultimately, it will be a case of ‘watch this space’.  Whatever the nature of the settlement, there will need to be a comprehensive review of environmental law to establish (1) what regulation is derived from the EU and then (2) whether this should be repealed (in whole or part) or amended.  This will be a substantial and extensive undertaking.

Climate change
  • The UK has its own carbon reduction schemes (the CRC Energy Efficiency Scheme and climate change levy, for example) and legally-binding emission reduction targets under the Climate Change Act 2008.  It seems unlikely these will change.
  • The validity of the EU Emissions Trading System could be open to query, particularly in relation to required targets and existing allowances.  However, there are already well-established national implementation and compensation measures in place linked to the EU scheme.  Some form of emissions trading scheme will therefore no doubt continue, but whether this will reflect / be joined to the EU scheme in some way or entirely independent is unclear.
Waste management
  • EU legislation and policy has provided much in this area – including recycling targets, the principle of diversion from landfill, and the waste hierarchy concept.  As the UK waste management sector is strong and well-established, it seems unlikely the UK Government will now dramatically alter waste management law.  EU regulation has indeed been credited for improved standards and achievements in this sector.
  • However, looking further into the future, recycling and waste reduction targets could be altered.  This raises the concern that long-term investment in and development of waste infrastructure will lessen.
  • Questions also arise around ongoing application of national waste law that was passed to implement EU legislation.  For instance, the UK definition of ‘waste’ (such as in the Environmental Protection Act 1990) directly references the EU Directive – highlighting the potential legal complexities now faced.
  • One thing that is clear, is that UK courts will no longer be bound by rulings of the Court of Justice of the European Union (CJEU).  This is likely to lead to challenges.  The ‘waste’ definition has also been strongly shaped by a series of CJEU decisions, but is now open to fresh interpretation and consideration.  Only where certain interpretations and approaches have become so imbedded in UK law will there be little impetus for change.
Habitats protection
  • The Habitats Directive and the Wild Birds Directive are the main EU environmental policy instruments.  They have had an important influence over urban development in the UK, particularly linked to the requirement on Member States to designate Special Areas of Conservation and Special Protection Areas.  Development likely to impact on these areas’ integrity previously faced considerable restrictions.
  • Protection of ‘worthy’ natural areas has a well-established pedigree in UK law.  Hence it is foreseeable that these will continue to be specially-managed and protected.  But the UK Government could now alter the level and type of protections, leading to less stringent habitat conservation regimes.
  • The Government will still need to take into account its international treaty obligations for habitat protection.  Several important international environmental conventions are currently implemented via EU legislation.  Consideration will have to be given to how obligations under and adherence with UN requirements is to be ensured.  As well as habitat protection, this includes areas such as access to justice in environmental matters (Aarhus Convention); climate change (the Framework Convention, Kyoto Protocol and Paris Agreement); and protection of endangered species.
REACH regulations
  • In comparison to the case with EU Directives, environmental Regulations were directly applicable in the UK and did not need implementing legislation.  For example, the REACH Regulations governing chemical control and handling. This means a regulatory ‘gap’ will now arise and such regulation is lost.
  • The option of not legislating afresh in this area may seem tempting, lessening the previously burdensome restrictions and bringing scope for simplification.  However, operators and businesses continuing to interact with EU countries would still be expected to comply with existing EU regimes to ensure access to the EU market.
  • EU standards have also ensured considerable environmental and safety protection to date, which it would be desirable to maintain – both from a business / reputational and public-protection perspective.
  • Depending on the settlement arrangement, the UK may now adopt its own, independent regulatory approach here.  Yet this could lead to different compliance obligations and further increase the regulatory burden.  For example, companies manufacturing, importing or using chemicals in both the UK and the EU would need to comply with REACH and the UK’s REACH-equivalent.
  • Another difficulty in relation to Regulations, is that enforcement and penalties are largely under the remit of national legislation.  This will need to be revoked.  Otherwise, there could be the unusual situation whereby a company is found guilty of the offence of failing to comply with REACH under the UK’s enforcement legislation, despite the fact that REACH is theoretically no longer applicable.
Contaminated land
  • Some environmental legislation is purely catered for under domestic law and so will probably feel no impact.  This includes the Environmental Protection Act 1990 and contaminated land regime.

If nothing else, the next year or two look to be full of uncertainty from an environmental perspective due to the intertwined nature of the UK and EU legal regimes.  There are opportunities for reappraisal and possible reduction of environmental legislation.  However, a different regulatory approach could bring fresh and different challenges. The UK is also likely to have less influence on international laws and agreements going forward.  Reviewing and responding appropriately to whatever situation arises is likely to incur considerable time, monetary and emotional resources.

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