The impact of Brexit on the UK’s planning and environmental regime: opportunities for limited change ahead?
The outcome of Brexit negotiations will remain unclear for some time. The Conservative party’s stated intent is to remove the UK from the Single Market, Customs Union and oversight of the European Court of Justice. However, as a minority government following the June 2017 elections, its own survival is not guaranteed and the government’s ability to get legislation through Parliament is now heavily compromised.
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. Much environmental regulation of industry also derives from the EU.
In the short term, there is unlikely to be any significant change as EU law will continue to have effect until the UK actually leaves the EU, probably in early 2019. The Great Repeal Bill is designed to convert all EU law into UK law, as well as creating temporary powers (known as Henry VIII Powers) for Parliament to fill any gaps or amend legislation to better fit the UK framework.
The extent to which that legislation will survive Brexit beyond the short term will in part depend on any trade deal struck with EU and the continuing need for the UK to adhere to measures imposed to require high levels of environmental protection throughout Europe and a level playing field across Member States. If Brexit allows the UK to set its own environmental agenda, the outcome will depend on the political will of the UK Parliament. Over time, we may see the tailoring of environmental law to adapt to UK priorities or in response to business seeking deregulation.
Significant Impact: the immediate term – The Great Repeal Bill
In the near future, it will be business as usual. The priority for the government is to avoid a regulatory gap upon leaving the EU, particularly in the environmental sphere as most secondary legislation implementing EU Directives has been made under the European Communities Act 1972.
The Bill is unlikely to get an easy passage through Parliament. Backbenchers and opposition parties will seize upon opportunities to influence the agenda, including in respect of human rights. The government has limited resources to listen to businesses seeking change to legislation and any lobbying should be focused on clear and limited priorities.
Potential Significant Impact: by 2019 – the way forward
Businesses affected by environmental regulation will need to monitor negotiations carefully over the next two years. It remains a possibility that the UK may join the European Economic Area (EEA), in which case it will have to comply with most EU environmental laws. As a member of the EEA but not the EU, the UK would have limited input into the evolution of existing environmental legislation or on the content of new legislation.
If the UK signs a bespoke Free Trade Agreement with the EU or operates under World Trade Organisation rules (whether by choice or having failed to reach agreement with the EU), there will be more scope for the government to consider changes to the environmental regime.
Lower impact: the long term
As is evident from the above, the scope for change to environmental legislation in the medium to long term depends primarily on the outcome of Brexit negotiations.
Opportunities may, however, arise. The need to maintain a healthy economy is likely to result in the government coming under pressure from businesses to limit the burden of environmental regulation. Developers may seek to cut red tape and reduce the costs of development work, particularly in the areas of environmental assessment where there may be support for increasing thresholds and simplifying procedural requirements. Following recent changes to licensing regimes, there may be further paring back of the protection of species such as the great crested newt which are commonplace in parts of the UK.
However, any change is likely to be gradual as the need for sustainable development and environmental protection remains a key plank of domestic policy. The UK also has a strong environmental lobby with influence at government level. Further, the large-scale removal of regulation could have political consequences, particularly in the wake of the Grenfell Tower disaster.
Moreover, aside from EU regulation, the government’s room for manoeuvre is constrained by international commitments it has signed up. Examples include RAMSAR (on Wetlands of International Importance) and the Aarhus Convention (on access to information, public participation in decision-making and access to justice in environmental matters).
A particularly controversial topic at present is air quality. The UK is consistently in breach of the main directive and the issue is increasingly becoming a factor in planning decisions, such as on a further runway at Heathrow. The government might be tempted to water down these provisions, although in doing so may face considerable political opposition, given the adverse impact that poor air quality has on people’s health and the natural environment.
One possibility which businesses should bear in mind is the possibility in the medium to longer term of 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. Although it is unclear whether environmental competencies returned from Brussels will automatically be returned to the devolved assemblies, there will certainly be significant political pressure for this to happen and the Sewel Convention (that the UK government will not legislate on devolved matters without the consent of the devolved legislature) suggests that it will. This could lead to the devolved legislatures enacting more stringent environmental regimes (which themselves may differ), even if the UK Parliament may cut regulation in England.
As the UK’s future post-Brexit becomes clearer, businesses would be well advised to think through their priorities carefully, talk to industry associations and consider the most effective ways of lobbying for change.
For more information please contact Claire Fallows on +44(0)20 7427 1046 or at email@example.com, or your regular Charles Russell Speechlys LLP contact.