In the short-term, Brexit will have very little impact on UK planning laws, as much of planning is decided at a domestic level. However, leaving the EU is likely to lead to some changes on this front.
This will be driven by the final content of the Environment Bill. At the moment, the draft form sets out how environmental protection will be delivered through planning after the transition period.
In the medium to long term, the changes resulting from Brexit will influence decision making in planning, and it is likely there will be differences between the devolved governments of the UK.
What environmental protections are currently in place?
Currently, the UK is still bound by the same principles of environmental law as it was pre-Brexit – including the EU’s Environmental Impact Assessment Directive and the Habitats Directive, which had far reaching implications for planning since they were adopted into UK law.
This environmental legislation will continue to be in effect until the end of the transition period on 31 December 2020. It covers areas including combatting climate change, biodiversity, water management and air pollution, among others.
The Agriculture Bill has just been passed into law too, offering some protections to farmers and land managers and rewarding those who improve the environment through things like better air and water quality through the Environmental Land Management Scheme.
It was hoped that the Environment Bill, first introduced to Parliament in October 2019, would be in place to cover the gap left once the transition period ends, and would become integral to other legislation being passed. The Bill would have ensured environmental issues are taken into consideration as standard. However, it was (understandably) delayed on its route through the Commons due to Covid-19, and since Parliament has re-opened, the Bill appears to have been pushed aside in favour of passing other legislation.
What will happen after transition?
It’s very unlikely that the Environment Bill will now be passed in time for January 1st and as responsibility for environmental matters goes to devolved governments anyway, it’s possible that there will be varying levels of requirement in England, Scotland, Wales and Northern Ireland.
The Environment Bill is pencilled in to have a ‘non-regression clause’ which will prevent any new legislation (including legislation relating to planning) from reducing the current levels of protection with regard to environmental issues.
In practice, this means that anyone involved in planning should be working with the current standards in mind, while being aware that criteria could become more stringent, and may vary depending in which country of the UK the work is taking place. Whilst the levels of protection aren’t expected to change greatly, the way in which this protection is administered will.
The Office for Environmental Protection will take the place of the EU environmental regulators. However, the Environment Secretary has already said that this will only be ready in embryonic form at the beginning of 2021. The systems to monitor and evaluate the environmental impact of projects, and to review legal challenges, will not be in place straightaway and may change as this new Office becomes fully established.*
In the short-term it is likely that at a local level, planning authorities will continue to use the same procedures in matters such as European protected species. In the long-term, the way these species are treated is likely to move towards a broader strategic approach through mechanisms such as District Licencing.
This, along with biodiversity net gain, will mean a reduced up-front burden on the planning process and a shift towards a system of tariffs designed to offset environmental effects. It will take several years to see if this system is more effective than the systems already in place. It may be that losses in some geographic areas are offset by gains in others.
It is likely that planning regulations will be relaxed to simplify the whole planning process, as an alternative to making lots of small changes across lots of individual pieces of legislation. This seems a greater possibility in legislative areas where growth is being encouraged, such as increasing housing and amenities.
This may be progressive in terms of reducing red tape and supporting the construction industry, but it could have a detrimental environmental impact as fewer checks and balances are in place in favour of speed and ease.
Until the Environment Bill has gone through all the amendments required to get through the Commons and the Lords, it’s difficult to predict exactly what form the end result will take. In the meantime, in the face of uncertainty and short of funding, local authorities are likely to continue to struggle to process applications and seem ill-equipped to adapt rapidly to a new system of decision making.
The Wider View
As planning isn’t just about one-off building projects but the environment as a whole, in the longer term we could find projects moving in a different direction.
Planning will become a domestic issue, so various political agendas or the need to work with a broader range of trade partners from around the world may influence what we see happening – for example, trading successfully with countries outside of the EU may put pressure on the UK to accept a drop in environmental standards.
As mentioned above, there is a possibility that Brexit will ultimately lead to simpler regulations for planners to take into consideration. A broader stroke to cover more environmental impacts seems fine on the surface, but there are concerns amongst the conservation sector that this means subtle variations between habitats could be ignored as long as the ‘net gain’ is positive. Ultimately, this could lead to the destruction of small, unique habitats in favour of homogenised habitat creation schemes.
However, any change creates a possibility for improvement, and while many of the parties involved are worried about potential negative impacts, the Extinction Rebellion movement in 2019 and the visible difference in our environment during lockdown has made many reassess the impact humans have on the world around them. As this becomes a higher priority for a greater number of the general public, it stands a greater chance of being reflected in planning laws and regulations, with more emphasis on protecting our environments and habitats.
What can we be sure of?
As it stands, there is much about the impact of Brexit on planning that we simply don’t know, and won’t know until the transition out of Brexit has been completed and alternative legislation has been put in place.
However, it is a fact that a greater proportion of the population is concerned about the environmental impact humans have on the world, and planning is a key part in protecting our environment as well as progressing our buildings and infrastructure. Therefore, it’s a fair assumption that environmental protection will remain a critical issue for planners to consider, whether it’s enforced at a government level or driven by those running or affected by planning projects.
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*Information about legal challenges is based on assumptions, as we have found no proof either way.
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