Don't....leave me this way

Tom Newcombe and Sue Chadwick consider the Government’s record so far in the environmental arena and what Brexit might mean in terms of planning law.

In the continued sound and fury of a post-Brexit hangover Boris Johnson, at one stage seen as the most likely prime minister-in-waiting, said that: "The UK will extricate itself from the EU’s extraordinary and opaque system of legislation”. So what will be the impact in the environmental field and on planning law?

Background

Under the European Communities Act 1972 (‘ECA’) some EU provisions and legislation have direct effect and prevail over 'any enactment’ including UK Acts of Parliament, while Directives are implemented through regulations under Section 2(2) of the ECA. Rulings of the ECJ must be given direct effect even if incompatible with UK law.

The environment was added as an area of competence in the Single European Act of 1986 and its principles are firmly embedded in UK planning law. A number of Directives have been implemented since we joined the EU, including those related to environmental assessment. Although both Cameron and Corbyn promoted a 'remain' approach, neither the current, nor previous administrations have a good compliance record in these areas.  

Compliance and the Environmental Impact Assessments

The Environmental Impacts Assessment (‘EIA’) Directive was made in 1985 and implemented through Regulations in 1988 [1].  A spate of third party challenges followed, as planning authorities failed to meet Directive requirements in terms of information supplied [2]; thresholds for intervention [3]; and proper use of planning conditions [4].

Barker v London Borough of Bromley [5] – stands as a landmark demonstration of persistent non-compliance and resistance to import EU concepts. Permission was granted in 1998 for the redevelopment of Crystal Palace Park with certain issues ‘reserved’ for subsequent approval. The subsequent challenge to the grant of reserved matters asserted that the reserved matters approval was a development consent for EIA purposes.

Both the High Court and Appeal Court disagreed with this assertion, but the ECJ ruled that the key issue was the scale of the development rather than the label applied. A reserved matters application might not be a planning permission in terms of the UK planning system, but it was still a development consent in EIA terms. The House of Lords accepted this ruling, noting that ‘the Secretary of State must accept responsibility for the defect.' [6]  Changes in legislation followed, but not until 2008, nearly 10 years after the original claim.

Compliance and Strategic Environmental Assessments

The Government’s record of compliance in relation to the 2001 Strategic Environmental Affects Directive (‘the SEA Directive’) is no better than it is in EIA, as shown through the 'Cala Homes' case.

In May 2010 the Secretary of State for Communities and Local Government announced the revocation of Regional Strategies with immediate effect “in order to give clarity to builders, developers and planners.” [7] Cala Homes challenged the Government’s decision on a number of grounds, including that it was a significant change to a 'plan or programme' and that its environmental impacts should have been assessed. The High Court agreed, ruling that the Secretary of State's decision was in breach of the SEA Regulations [8]; because the regional strategy in question could play a ‘decisive role’ in the determination of applications its immediate revocation could therefore also have an impact sufficient to require assessment [9]. The Secretary of State was held to have acted unlawfully, and the regional strategies were reinstated until their impact could be properly assessed.

Environment generally

Boris Johnson was careful to say that deregulation "will not come in any great rush”. However, since the 2010 election, the Government has already shown some eagerness to disengage from the environmental agenda:

• In December 2012 Eric Pickles made a statement to Parliament on the emerging new EIA Directive criticising the 'regulatory creep' of the European Union
• In June 2013 the Environmental Audit Committee report on the UN Rio+20 Earth Summit noted that: ‘the Treasury appears to view the environment as a block to economic development.’ [10]
• The Technical Consultation on planning carried out in 2014 stated that there was ‘over-implementation’ of environmental assessments; [11]
• In March 2015, the Code for Sustainable Homes was removed, and only partially reinstated into Building Regulations; [12]
• In July 2015, the Government announced it would no longer proceed with regulations to make all new homes carbon neutral [13]

What next

The only precedent for withdrawing from the EU is Greenland in 1985 and this was under the Treaty of Rome. There is no precedent for implementing Article 50 but it will require an Act of Parliament to repeal the 1972 Act, and substantial transitional arrangements in a number of areas. The effects of an EU-exit will depend on the overall deal negotiated and the most recent House of Commons Briefing Paper on this issue [14] is clear that:

• Nothing will change immediately and the UK will continue to be bound by and to apply EU law;
• The Government can repeal or amend the European Communities Act 1972, and secondary legislation implementing EU Directives;
• EU-based UK law could remain part of UK legislation, so long as it “worked without the UK being in the EU".

So will the Government be keen to seize Brexit as an opportunity to reduce environmental controls?

Despite the Government's apparent eagerness to reduce environmental controls, there is an enormous amount of legislative change on the horizon and the Government may well not have time for a comprehensive review of UK environmental law.

If there is a complete break and the ECA is repealed, then regulations made using Section 2(2) will cease to have effect. If the ECA is amended rather than repealed then provision could be made to ensure that secondary legislation made under section 2(2) remains in force. If we withdraw from the EU decisions already made by the ECJ would be influential but no longer bind our courts, while those already made would remain good law until tested.

This is an awful lot of 'ifs'. Much will depend on what can be negotiated in the withdrawal agreement – and the political will to remain bound to the existing environmental agenda.

Tom Newcombe is a partner and Sue Chadwick is a senior associate in the planning law team at Birketts. Tom can be contacted on 01223 326611 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Sue can be reached on 01223 326615 or This email address is being protected from spambots. You need JavaScript enabled to view it..