Brexit & Planning – An Update

This post focuses on the relevance of the provisions of the UK-EU trade and cooperation agreement (“T&CA”) (provisional agreement subject to ratification, 25 December 2020) to the future of the English town and planning system.

The prime minister’s 24 December 2020 statement contained the following passages of particular note:

“We will be able to set our own standards, to innovate in the way that we want, to originate new frameworks for the sectors in which this country leads the world, from biosciences to financial services, artificial intelligence and beyond.

We will be able to decide how and where we are going to stimulate new jobs and new hope.

With freeports and new green industrial zones.

We will be able to cherish our landscape and our environment in the way we choose.

I will leave discussion as to “freeports and new green industrial zones” for another day, interesting as it is to see these references in big picture soundbites. Instead, I want to consider whether, in relation to the environment, we will indeed be able to “set our own standards” and “to cherish our landscape and our environment in the way we choose”.

In my 4 July 2020 blog post Have We Got Planning Newts For You: Back To Brexit I summarised what the legal position will be at 1 January 2021 in relation to EU-derived environmental law.

In that time of pre- planning white paper speculation I noted that reform to the planning system was likely to be predicated on reform to environmental law on environmental impact assessment, strategic environmental assessment and conservation of habitats and species:

“…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.”

I noted that it would be open to the Government to make changes to EU-derived environmental law from 1 January 2021. 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.”

Now we have seen the detail of the T&CA, we know what constraints the Government will be under. The main areas of interest start, as far as we are concerned, around page 203:

As for setting our “own standards”, see Article 7.2, on non-regression:

2. A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.

3. The Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter”

Environmental levels of protection” means “the levels of protection provided overall in a Party’s law which have the purpose of protecting the environment, including the prevention of a danger to human life or health from environmental impacts, including in each of the following areas:

(a) industrial emissions;

(b) air emissions and air quality;

(c) nature and biodiversity conservation;

(d) waste management;

(e) the protection and preservation of the aquatic environment;

(f) the protection and preservation of the marine environment;

(g) the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or

(h) the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.”

Climate level of protection” means “the level of protection with respect to emissions and removals of greenhouse gases and the phase-out of ozone depleting substances. With regard to greenhouse gases, this means:

(a) for the Union, the 40 % economy-wide 2030 target, including the Union’s system of carbon pricing;

(b) for the United Kingdom, the United Kingdom’s economy-wide share of this 2030 target, including the United Kingdom’s system of carbon pricing.”

Article 7.4, environmental and climate change principles:

“1. Taking into account the fact that the Union and the United Kingdom share a common biosphere in respect of cross-border pollution, each Party commits to respecting the internationally recognised environmental principles to which it has committed, such as in the Rio Declaration on Environment and Development, adopted at Rio de Janeiro on 14 June 1992 (the “1992 Rio Declaration on Environment and Development”) and in multilateral environmental agreements, including in the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992 (the “UNFCCC”) and the and the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992 (the “Convention on Biological Diversity”), in particular:

(a) the principle that environmental protection should be integrated into the making of policies, including through impact assessments;

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

(c) the precautionary approach referred to in Article 1.2(2) [Right to regulate, precautionary approach and scientific and technical information];

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

(e) the polluter pays principle.

2. The Parties reaffirm their respective commitments to procedures for evaluating the likely impact of a proposed activity on the environment, and where specified projects, plans and programmes are likely to have significant environmental, including health, effects, this includes an environmental impact assessment or a strategic environmental assessment, as appropriate.

3. These procedures shall comprise, where appropriate and in accordance with a Party’s laws, the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations and the taking into account of the environmental report and the results of the public participation and consultations in the consented project, or adopted plan or programme.

4. For the purposes of this Chapter, insofar as targets are provided for in a Party’s environmental law in the areas listed in Article 7.1 [Definitions], they are included in a Party’s environmental levels of protection at the end of the transition period. These targets include those whose attainment is envisaged for a date that is subsequent to the end of the transition period. This paragraph shall also apply to ozone depleting substances.

5. The Parties shall continue to strive to increase their respective environmental levels of protection or their respective climate level of protection referred to in this Chapter.”

Article 7.5, enforcement:

“Party shall, in accordance with its law, ensure that:

(a) domestic authorities competent to enforce the relevant law with regard to environment and climate give due consideration to alleged violations of such law that come to their attention; those authorities shall have adequate and effective remedies available to them, including injunctive relief as well as proportionate and dissuasive sanctions, if appropriate; and

(b) national administrative or judicial proceedings are available to natural and legal persons with a sufficient interest to bring actions against violations of such law and to seek effective remedies, including injunctive relief, and that the proceedings are not prohibitively costly and are conducted in a fair, equitable and transparent way.”

Disputes between the EU and UK as to whether one party is in breach of these provisions (in a way which affects trade or investment) may be referred (by the EU or the UK alone, not by individuals) to a panel of experts, whose determination is not binding. Breaches can feed into negotiations as to rebalancing of the obligations as between the parties over time (the agreement is to be reviewed every five years and can indeed be terminated by either party on 12 months’ notice) or can lead to a party imposing tariffs (to be reviewed via arbitration). (Compliance with climate change targets in the Paris agreement is more tightly controlled, given Article COMPROV 5 on page 405, one of the limited number of “essential measures” in the agreement, breach of which can lead to suspension or termination of the agreement).

The Article 7 provisions provide some limited comfort as to non-regression from agreed minimum environmental principles, whilst allowing the parties latitude to achieve those principles by differing means. However, this in reality leaves us dependent on the EU crying foul if the UK is considered to be in breach (not particularly practical and ultimately not legally binding). No longer can we as individuals complain direct to the European Commission or litigate as to breaches in our domestic courts (or indeed request our domestic courts to refer issues to the European Court of Justice).

The UK Government intends to replace the role of the Commission, in receiving and and acting upon complaints, with a new quango, the Office For Environmental Protection. The establishment of the OEP is dependent upon the Environment Bill passing into law and for work then to be done in establishing a set of environmental principles and priorities to guide its work. The Bill hasn’t yet cleared its final Commons stages. In one sign of progress, there is now a potential chair for the organisation: Dame Glenys Stacey selected as preferred Chair for Office for Environmental Protection (DEFRA press statement, 9 December 2020). There is also a current appointment process for non-executive directors (closing date for applications: 12 January 2021). However, there is still going to be a lengthy period where there simply is no practical safety net in the event of regression by the UK government from minimum environmental principles.

As I said in my July blog post: “…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?”

The proposals within the planning white paper are indeed dependent on a changed system for strategic environmental assessment and environmental impact assessment. Otherwise the proposed timescales for plan-making and decision-making would be unachievable, as would the idea for granting large development consents routinely by way of growth area allocations in local plans.

Environment minister George Eustice indicated that there would definitely be reform, in his 20 July 2020 speech on environmental recovery:

“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.

We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”

Did you miss the consultation? No, of course not. These promised announcements are like vapour trails. The government is no doubt drilling down to a greater level of detail as to its reforms to the planning system but there is silence as to what changes are intended to existing systems of environmental protection.

Eustice gave a few clues as to what the direction of change might be:

“Now EU environmental law always has good intentions but there are also negative consequences to attempting to legislate for these matters at a supranational level. It tends to lead to a culture of perpetual legal jeopardy where national governments can become reluctant to try new things or make new commitments for fear of irreversible and unpredictable legal risks. This in turn creates a culture where there are frankly too many lawyers and not enough scientists and too many reports but not enough action.

So, as we chart a new course for our approach to protecting the environment, we can retain the features that worked and change the features that didn’t. We should recognise that the environment and our ecosystems are a complex web of interactions that mankind will never fully understand let alone manage. We should re-balance the way we approach policy development with more focus on science and technical knowledge and less time fretting about legal risks of doing something new or innovative. We should have fewer reports that say nothing new – but more new ideas that we should actually try.

And we should be willing to try new approaches safe in the knowledge that we have the power to change things again if a policy idea fails. Our targets framework should give us a clear set of objectives to work to but to meet those targets our approach to policy development must be agile or iterative and must create the space for more experimentation and innovation.

If we are to protect species and habitats and also deliver biodiversity net gain, we need to properly understand the science to inform these crucial decisions. And we should ask ourselves whether the current processes are as effective or efficient as they could be.

Is there sufficient access to data and knowledge to know which species should be assessed? If we had better more up to date data about things such as flood risk, habitats, species, and air quality could we design plans for sustainable new projects and developments more effectively and efficiently than we do now? Do we have enough focus on improvements at a landscape scale? Do Local Authorities adopt a consistent approach to the screening process through Environmental Impact Assessment? Do they have the capability to engage over the lifetime of a project?”

I think we can all suggest areas for improvement, but it’s not easy to propose amended procedures that achieve the necessary objectives. Part of the effectiveness of say EIA or SEA has been down to its legal rigour. Where is the balance to be drawn? Personally, judging by the significant changes that the government is consulting upon in another area previously the domain of EU law – public procurement – I do expect to see some radical proposals, that we will all need to reflect upon.

Concluding thoughts:

⁃ It is obviously good news that we have an agreed form of T&CA, subject to ratification by Parliament shortly.

⁃ It is good news to see the high level environmental protections contained within it (and of course they do constrain, albeit to a sensible extent, our ability to “set our own standards”).

⁃ It is concerning to be entering a period from 1 January 2021 when we will have no practical legal protection against UK regression from the environmental principles which previously applied to the UK by way of EU directives to which it was previously a party.

⁃ It is concerning to see the slow progress of the Environment Bill, given the work that then has to be done before the proposed OEP is a functional entity.

⁃ It is concerning that we still do not have the promised consultation as to possible changes to EU-derived environmental law, which was due to be published in Autumn 2020.

It’s really important that any amended system of EIA, SEA and HRA works properly. There are undoubtedly improvements to be made to processes, but also pitfalls to avoid. At the moment the debate is still only at the “motherhood is good” stage.

We have arranged a joint webinar with Keating Chambers at 5.30 pm on 5 January 2021 to examine the practical issues and to be ready to feed in our thoughts. I hope you can join (from Keating) Charlie Banner QC and (from Town Legal) Steve Quartermain CBE, Duncan Field, Safiyah Islam and me – free registration here: https://us02web.zoom.us/webinar/register/WN_VCsYkhQcSzOm2uqDxN-w8A .

Simon Ricketts, 27 December 2020

Personal views, et cetera

Author: simonicity

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

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s