Have We Got Planning Newts For You: Back To Brexit

Whether dog whistle politics, a dead cat strategy or a jibe at the triturus cristatus, the prime minister’s reference to “newt-counting delays” in his 30 June 2020 speech was no accident:

“Why are we so slow at building homes by comparison with other European countries?

In 2018 we built 2.25 homes per 1000 people

Germany managed 3.6, the Netherlands 3.8, France 6.8

I tell you why – because time is money, and the newt-counting delays in our system are a massive drag on the productivity and the prosperity of this country

and so we will build better and build greener but we will also build faster

and that is why the Chancellor and I have set up Project Speed to scythe through red tape and get things done”

As a literal statement, it is nonsense to blame the operation of the protected species regime in relation to great crested newts for the failure of successive governments to ensure that enough new homes are built in this country. Licensing has in any event already been overhauled – see Innovative Scheme to conserve newts and promote sustainable development is rolled out across England (Natural England, 25 February 2020). See also this BBC piece, Boris Johnson’s newt-counting claim questioned (Roger Harrabin, 3 July 2020).

The underlying messaging that was intended by the statement is of course clear: that there are environmental rules, “red tape”, previously foisted on us by Brussels, unnecessary, holding back development.

To continue with the animal references, this is a topical canard. I had in any event intended this week to sidestep the recent announcements about radical planning reform and go back to the possibly related question as to what is actually likely to happen from 1 January 2021 following the end of the Brexit transition period. My Town colleague Ricky Gama and I gave an online talk on this issue last week as part of the Henry Stewart Conferences course The Planning System. We need to focus again on all this, now that we are less than six months away from….what?

The EU (Withdrawal) Act received Royal Assent on 23 January 2020, amending in various respects the EU (Withdrawal) Act 2018 and giving Parliamentary approval for the withdrawal agreement between the UK and EU that was then completed on 1 February 2020. We left the EU on 31 March 2020 in the sense of no longer being part of its structures, including the European Parliament or European Commission. But we remain subject to EU law until 31 December 2020.

Until 31 December 2020, decisions of the UK government and UK public bodies can still be the subject of complaints to the European Commission and rulings by the European Court of Justice, and we are bound by changes in law and by any rulings of the ECJ by that date.

On 31 December 2020, EU law becomes “retained EU law” and existing rulings of European Court of Justice have binding effect.

However (not to scare the horses but…), from that date Parliament may review, amend or repeal all EU-derived domestic legislation without restriction. The Government can provide regulations as to how the UK courts should interpret retained EU law. The Supreme Court is not bound by any retained EU case law. Ministers can by regulations provide for any other relevant court or tribunal not to be bound (first consulting with the president of the Supreme Court president and other specified senior members of the judiciary). Indeed, the Government is already consulting as to how it might give freedom to lower courts to do this: it is no longer a hypothetical possibility – see Government consultation on lower courts departing from retained EU law (Philip Moser QC, 2 July 2020).

Of course we will go into 2021 with EU environmental law fully domesticated into our own systems. As far as planning law is concerned, the EIA, SEA, protected habitats and species regimes will remain, as already set out in our domestic legislation. But then what?

This Government has given no assurances.

There was previously a requirement in section 16 of the 2018 Act that the Government would maintain environmental principles and take steps to establish overseeing body, by publishing a draft Bill in relation to those matters by the end of 2018

Section 16 set out the relevant environmental principles ie

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

b) the principle of preventative action to avert environmental damage,

c) the principle that environmental damage should as a priority be rectified at source,

d) the polluter pays principle,

e) the principle of sustainable development,

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

g) public access to environmental information,

h) public participation in environmental decision-making, and

i) access to justice in relation to environmental matters.

A draft Bill was published by that deadline and its provisions, with some amendments (including a reduced version of that list), are now within the current Environment Bill.

The reduced list of environmental principles (in clause 16(5) of the Bill) is now as follows:

“(a) the principle that environmental protection should be integrated into the making of policies,

(b) the principle of preventative action to avert environmental damage,

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

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.”

It no longer includes the principle of “sustainable development” or the last three principles set out in the 2018 Act, which derive from the Aarhus Convention rather than directly from EU law.

Progress on the Bill has been delayed until September 2020 due to Covid-19 (whilst the Government has not chosen, by the 30 June 2020 deadline in the withdrawal agreement, to agree an extension to the 31 December date, which would of course have been possible on exactly the same basis). But in any event Royal Assent would only be the start of a long process of arriving at policy statements so as to deliver on those principles and have up and running a functional Office for Environmental Protection (recruitment for roles within the proposed OEP has not yet commenced).

So any “radical” reform of the planning system is likely to slip in ahead of oversight, in any meaningful way, by this new body or application of the principles that were intended at the time of the 2018 Act to plug the gap post Brexit.

In fact, it’s worse than that. Section 16 of the 2018 Act was repealed by the 2020 Act. There is no longer any duty upon the Government to adopt any particular environmental principles or to establish any independent overseeing body. If the Environment Bill is withdrawn, kicked into the long grass or, by way of amendment, stripped of meaning, there’s nothing to be done, the horse has bolted.

The December 2019 Queen’s Speech said this:

“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”

By way of political commitment, that’s all there currently is. (NB I think we need to give that “world-leading” epithet a rest – I am trying to think of a recent example where we wouldn’t have been content to swap “world-leading” or “world beating” for, say, “functioning”?).

So from 1 January 2021, what changes might we see to EU-derived environmental law?

It’s pure guess-work, because the Government will not presently be drawn on that subject (which makes the “newt” reference so triggering).

But do you think it was an accident that the last essay in the Policy Exchange publication Planning Anew, just before the tail-wagging endorsement at the end by the Secretary of State, was an essay entitled Environmental Impact Assessment fit for the 21st Century by a William Nicolle and Benedict McAleenan? A flavour:

“To make them fit for the 21st Century, EIAs should focus only on the environmental impacts of development, like natural ecosystems, biodiversity, water, and other components of natural capital. Greater weighting and priority could be given to the most pressing environmental impacts of today, such as biodiversity, given recent evidence of the scale of international and national wildlife decline.

There are several, more subjective facets of EIAs that need to be stripped out, as they dilute this focus and prioritisation of environmental impacts. Landscape aesthetics, for example, should not be included in EIAs, as they are not environmental impacts per se. Policy Exchange has led calls for beauty to be a central factor in the planning system. We applaud this, and have argued for the natural landscape to be the inspiration for architecture, but the EIA should be concerned with what the environmentalist Mark Cocker calls the “more than human”.”

Who are the authors? William Nicolle apparently joined Policy Exchange in 2019, having been a graduate analyst at a utility. Benedict McAleenan is managing partner at “political risk and reputation” firm Helmsley Partners.

The prime minister’s 30 June 2020 “Build, Build, Build” press statement promised a “planning Policy Paper in July setting out our plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society.”

If changes are proposed to EU-derived environmental laws, please can that be made absolutely clear so that we can have an informed debate. Change and improvement is possible but only where led by the science, not by the think tanks.

After all, any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.

Of course, the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.

But, if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?

Isn’t this the elephant in the room?

Yours faithfully, a newtral observer.

Simon Ricketts, 4 July 2020

Personal views, et cetera

PS Two webinars coming up, free registration, covering the sorts of issues I cover in this blog. Do register and tune in if of interest:

4pm 7 July (hosted jointly by Town Legal and Francis Taylor Building): NSHIPs? The case for residential-led DCOs. I am chairing a discussion between John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building). Register here: https://zoom.us/webinar/register/WN_7SoJtOhqQwSJNt0jtmUFVA

5pm 14 July (hosted by Town Legal): Living, Working, Playing – What Does The Covid Period Teach Us? My Town partner Mary Cook is chairing a discussion between Steve Quartermain (Government’s former chief planner, consultant Town Legal), Karen Cook (founding partner, PLP Architecture), Jim Fennell (chief executive, Lichfields), Simon Webb (managing partner, i-transport) and myself. Register here: https://zoom.us/webinar/register/WN_pSbroYIoSRioMXvtDlGP3Q

The great crested newt (courtesy: wikipedia)

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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