The impact of Brexit on the UK’s planning and environmental regime: opportunities for limited change ahead?

As of 11pm on 31 January 2020 (exit day), the UK ceased to be a member of the European Union. The immediate impact on the UK’s planning and environment regime is limited: for the purpose of the transition period the UK remains subject to EU laws.

How is existing EU law retained?

Under the European Union (Withdrawal) Act 2018, EU-derived domestic legislation which was in effect immediately before exit day (i.e. on 30 January 2020) continues to have effect in UK domestic law on and after exit day. In this context EU legislation includes EU regulations and decisions (but not EU directives), subject to certain exemptions. The supremacy of EU law does not apply to any law passed or made on or after exit day.  

Planning law in the UK is largely domestic, although it incorporates regulation on aspects such as environmental impact and habitat assessment driven by the EU and wider international law. Much environmental regulation of industry also derives from the EU. The Environment Bill anticipates significant developments in respect of the environmental regime.

The Environment Bill

The Environment Bill in part derives from the 2018 Act which required the Secretary of State to publish a draft bill setting out environmental principles to include:

(a) the precautionary principle so far as relating to the environment,

(b) the principle of preventative action to avert environmental damage, i.e. that environmental damage should as a priority be rectified at source and that the polluter pays,

(c) the principle of sustainable development,

(d) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(e) public access to environmental information and public participation in environmental decision-making, and

(i) access to justice in relation to environmental matters.

These are established principles of environmental law deriving largely from EU law.

The last draft of Bill was extensive in scope, covering:

• Environmental Governance:
  • requiring the government to set and meet long-term targets relating to the natural environment (such as air quality)
  • requiring the government to have and maintain an Environmental Improvement Plan (a plan to significantly improve the natural environment) and produce annual reports regarding progress
  • creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold the government to account on environmental law and its Environmental Improvement Plan
  •  establishing an OEP enforcement process of environmental review in the Upper Tribunal
• Waste and Resource Efficiency:
  • requiring producers to pay the full net cost of managing their products at end of life to incentivise more sustainable use of resources
  • ensuring households have a weekly separate food waste collection
  • improving the regulator’s effectiveness in tackling waste crime and allowing the Environment Agency to be more responsive in managing exempt waste sites
• Air Quality & Water
• Nature and Biodiversity
  • Mandating a net gain in biodiversity through the planning system, requiring a 10% increase in biodiversity after development compared to the level of biodiversity prior to the development taking place

Importantly, the Bill requires that any future bills containing environmental provisions must be accompanied by a statement to the effect that:

“in the Minister’s view, the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.

This so-called “non-regression clause” reduces the likelihood of the Government softening existing regulations concerning the environment. However, there remains scope for bills to be introduced with different types of environmental policies so long as these afford at least the same or greater level of environmental protection.

Way Forward

In the short-term, the existing environmental and planning regimes continue as before the UK’s departure. In the medium term, the framework for environmental legislation will evolve to reflect the domestic political agenda. There are no guarantees that future UK environmental legislation will result in alignment with current or future EU legislation.

The Government has indicated that it is committed to protecting and restoring the natural environment and one therefore might assume that there will be no “rolling-back” of legislation designed to protect the environment. This commitment will be put to the test both during the progression the Bill through Parliament and during trade negotiations throughout the course of 2020.

One possibility which businesses should bear in mind is that, in the medium to longer term, there could be increased divergence and fragmentation between the environmental regimes within the constituent parts of the UK. Environmental matters are devolved to the Welsh Assembly and the Scottish Parliament. This could lead to the devolved legislatures enacting more stringent environmental regimes (which themselves may differ).

For more information please contact Claire Fallows on +44(0)20 7427 1046 or at claire.fallows@crsblaw.com, or Sophie Willis on +44(0)20 7438 2117 or at sophie.willis@crsblaw.com or your regular Charles Russell Speechlys LLP contact.