“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
Undoubtedly, the environmental protection and assessment system that has developed pursuant to European Union Directives and caselaw of the European Court of Justice is ripe for review now that we are no longer in the EU. It is complicated, uncertain and its tests can lead to wide repercussions, as we have seen with the “neutralities” issues the subject of Natural England’s advice. It was no surprise that the Government has been trumpeting for years (literally years) the opportunity to review the system post Brexit.
This was Environment minister George Eustice 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.”
“Later this Autumn”, my foot!! Only last month was the Nature Recovery Green Paper finally published, for consultation from 16 March to 11 May 2022. This was finally the opportunity to grasp the nettle.
I have read the paper several times now, together with the summary of findings of the HRA review working group comprising DEFRA ministers Lord Benyon and Rebecca Pow, Tony Juniper (Natural England chair) and Christopher Katkowski QC that was published alongside the green paper. I’m afraid I do not see any nettles grasped but rather far too much about how to assimilate the nomenclature and classification of EU designations (special areas of conservation and special protection areas) into our domestic regime and general aspirations for a system that is simpler and clearer without any ideas as to how to make it, in practice, simpler or more clear. How do we actually address these nutrient neutrality issues for instance and avoid any more applications via Natural England advice of an emergency hand-brake on the operation of the planning system?
I make the point forcefully because there is a risk that we all see this as complicated, long-term, expert-driven and ultimately one for the academics and planoraks, whereas it is vital stuff if we are to achieve a functioning planning system alongside a system of environmental protection and recovery that is fit for purpose (or at least as good as the EU system of which we are no longer part).
My Town Legal colleague Stephanie Bruce-Smith has summarised chapter 3 of the green paper in a piece which I set out at the foot of this post without amendment – and for which I take the responsibility (but not the credit). Chapter 3 is the meat of the proposals and Stephanie’s piece, which I think is great and I hope you do too, will give you a good sense of the Government’s thinking.
We are going to be discussing the green paper in a clubhouse session this week – at a changed time and date so please mark it in your calendars – 5.30 to 6.45 pm on Monday 4 April. Our main speakers will be Victoria Hutton (39 Essex chambers) (who has published this great summary on LinkedIn), Andrew Baker (Baker Consultants) and Stephanie Bruce-Smith (Town Legal). Event details here.
Simon Ricketts, 2 April 2022
Personal views, et cetera
Stephanie’s piece:
Nature recovery green paper: protected sites and species
Introduction
On 16 March 2022 DEFRA published its Nature Recovery green paper. The green paper opens by identifying two main problems. The first is the degradation and/or loss in habitats and species over the last 50 years. This problem is cited as a key reason for a renewed emphasis on nature’s recovery, rather than conservation, which has hitherto been the focus of nature protection regimes. The second problem identified is the complexity of the existing environmental regulatory landscape for protected sites and species. It references the overlapping site designations as a significant issue, noting how over 80% of Sites of Special Scientific Interest (SSSIs) by area are also designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). This overlap is said to be problematic in two main ways:
(i) It distracts from the ability to focus resources strategically or holistically on actions on-site and pressures off site in a way that best delivers for nature, and
(ii) Very few members of the public are likely to know what these terms mean, or why these sites are worth protecting, which is crucial to public engagement with and support for this work.
There is therefore a wish to “simplify and streamline environmental regulation, with a focus on delivering legally binding targets now enshrined in the Environment Act”. The paper also includes two further aims: moving towards a system where scientific judgment has a greater role (“rather than action being led solely by legal process”); and greater flexibility and accountability given to those delivering policy on the ground, to enable a more joined up response to the specific circumstances of particular sites and areas. In summary, the five main aims of the reform are:
1. Renewed emphasis on, and designation for, nature’s recovery;
2. Simplification and streamlining of environmental regulations;
3. Delivery of environmental targets or outcomes;
4. A greater role for scientific judgement; and
5. Increased flexibility and site-specific policy delivery.
The green paper builds on the findings of the Habitats Regulations Assessment Review Working Group and focuses on several “remaining” areas where DEFRA believes change is required to meet the UK’s nature recovery ambition, i.e. areas not covered by the Environment Act 2021, the Fisheries Act 2020, the Agriculture Act 2020, the Sustainable Farming Incentive and the Local Nature Recovery and Landscape Recovery schemes. By far the most detailed chapter is Chapter 3, the proposals for protecting wildlife sites on land and at sea, which is the focus of this note. Chapters 4-6 will be dealt with in a separate note.
Protected sites: a primer
To understand why there is a significant overlap between protected sites, as correctly identified in the Green Paper, and why this might be problematic, it is useful to consider the various nature conservation regimes in place in the UK, their scope and their purpose. This section will therefore provide a brief overview of the patchwork of regimes that govern this area.
Sites of Special Scientific Interest (“SSSIs”) as their name suggests, have roots in the post-war idea that nature had a “scientific” value. Under section 28 of the Wildlife and Conservation Act 1981, Natural England may designate (notify) a site as being of special interest by reason of any of its flora, fauna, geological or physiographical features. A notification by Natural England specifies the features by reason of which the land is of special interest and any operations Natural England believe are likely to damage those features.
The practical implications of a SSSI notification are that if an owner or occupier wishes to carry out an operation considered likely to damage the features, prior consent is required from Natural England, unless the operation is carried out in accordance with a management agreement or management scheme.
Special Areas of Conservation (“SACs”) and Special Protection Areas (“SPAs”) are designations deriving from two EU Directives: the Habitats Directive and the Birds Directive. The designation of sites under the two directives differs. The basis of designation of a SPA is scientific: it must be ornithological criteria alone set out in the Birds Directive (e.g. 1% of the population of listed vulnerable species). By contrast, for SACs, Member States must make a selection of proposed areas according to scientific criteria listed in Annex III of the Habitats Directive, to ensure that specific habitat types and habitats of certain protected species are maintained. Based on these proposals, scientific seminars are convened for each biogeographical region and a list of Sites of Community Importance (SCIs) are ultimately adopted. Member States must designate those areas of Special Areas of Conservation (SACs) within six years.
The main implication of such a designation it requires an assessment (known in the UK as a Habitats Regulations Assessment or “HRA”) to take place before any potentially damaging activity can take place. If the HRA concludes that the impact is likely to adversely affect the integrity of the site, the only way in which development may occur on such a site is where there are imperative reasons of overriding public interest (IROPI). Where these are present, the competent authority will also decide what potential compensatory measures are needed to maintain the overall coherence of the site.
The question of whether such an impact requires a HRA and whether it meets the test, is a question for the decision-maker. As set out in the green paper, the HRA process “aims to inform decision-making regarding the protection of conservation areas of international importance from any harm that may arise from activities or development” – it is not intended to be prescriptive about what can or cannot be built, or deliver any set conservation outcomes.
Pausing there, it is possible to see why there is frequently (if not nearly always) an overlap between SSSIs, SACs and SPAs. It is likely that a site of special interest for reason of its fauna (and thus designated a SSSI), would also be a European protected site for the habitat it provides for such fauna (requiring a SAC designation) – and potentially even fall under a migration path for certain birds and protected for that reason too (SPA). However, not only do these regimes protect different things (site of special interest, habitats, birds) but also SSSIs and the EU regimes offer different forms of protection. For SSSIs, Natural England must grant prior consent for any specified operation whereas for SACs, and SPAs, any “plan or project” may trigger the need to carry out a HRA.
Marine Conservation Zones (“MCZs”) and a network of marine conservation sites were created under the Marine and Coastal Access Act 2009. Ramsar sites are wetlands of international importance, designated under the Convention on Wetlands of International Importance (Ramsar convention), of which the UK is a signatory.
Given its breadth, SACs, SPAs and Ramsar sites can easily be designated SSSIs and indeed almost all (if not all) land-based SACs and SPAs are also SSSIs. In contrast to National Nature Reserves (NNRs), SSSIs are often on private land.
Protecting wildlife sites – on land and at sea
There are two main limbs to the Government’s proposals for reform in this area: (a) consolidation and (b) promotion of scientific judgment.
A. Consolidation
The section opens with the statement that “the Government is interested in consolidating the protected sites we have into a simpler legal structure to deliver better environmental outcomes which are based on the best available science and evidence”. It highlights in particular the “disconnect between the historical purposes for which different types of sites were designated and our ambition to halt biodiversity loss by 2030 and protect 30% of our land and seas”. Accordingly, “a more ecologically coherent but less complex network of sites with a clear purpose could offer multiple benefits and ensure the network better addresses both nature recovery and climate change”.
These statements raise a number of questions which remain unanswered throughout the paper. Is case that the existing network of sites are not “ecologically coherent” or fail to be based on science? And whilst it may be the case that the historical purpose of SSSIs is not solely concerned with biodiversity or habitats (as we see above, it is much wider), it is difficult to see how designations such as SACs, MCZs and Ramsar sites are concerned with anything other than biodiversity loss. And as for the goal of protecting 30% of land and seas, one might legitimately ask why the goal of increasing the amount of land protected in the UK requires overhauling and redefining protected sites – unless, of course, this might make the goal easier to achieve by making it easier to categorise sites as “protected”.
Turning to the proposals, these fall under three main types (although the green paper splits them into five headings): (1) protected sites reform/consolidation (2) reform/consolidation of the designation procedure for such sites and (3) introduction of new nature recovery sites.
(1) Protected sites reform
The paper identifies three options for reform of terrestrial sites, all with the aim of better enabling “nature’s recovery through a less prescriptive system which allows the right actions to be taken in the right places” (unfortunately, the paper does not elaborate on the precise ways in which it believes the current system to be over-prescriptive, or what the “right actions” are that need to be taken are but cannot currently be taken in the existing system).
Option 1 is a tiered approach, which proposes to replace the existing regimes with ‘highly protected’ sites (applying only to a limited number of sites of the highest international importance) and ‘protected’ sites (managed for national or international biodiversity or geodiversity importance as SSSIs, SACs and SPAs are currently). ‘Highly protected’ sites would provide stronger protection than currently applied to existing SACs and SPAs and would largely focus on protection and recovery of terrestrial ecosystems (e.g. nature reserves). The paper notes that for ‘protected’ sites, as at present, economic and other activities would need to be sustainable in relation to the conservation objectives of those sites.
Option 2 would focus on “streamlining and merging existing site designations that operate similarly (SACs, SPAs, and SSSIs)”. An example provided is to “rename” the site designations as ‘highly protected’ and ‘protected’. It suggests that the areas of existing sites network which are of international biodiversity and geodiversity importance could be designated ‘highly protected’; and that ‘protected’ could apply to the remaining areas of the sites network, which could be managed and protected in a similar way to SSSIs.
The distinction between this proposal and option 1 appears to be that option 1 would strengthen the protection for a limited number of sites, whereas option 2 appears to be just a renaming exercise. However, for option 2, it is unclear where the distinction between ‘highly protected’ and ‘protected’ will apply, since it appears to suggest that the ‘highly protected’ designation will be give to areas of the existing site network which are of ‘international and biodiversity and geodiversity importance’. Logically, this would mean all Natura 2000 sites, i.e. all SACs and SPAs – and therefore nearly all SSSIs too.
Option 3 consists of consolidating existing sites into one single type of protected site designation, which could “reflect the existing sorts of protections whilst offering an opportunity to convey the value and benefits of these sites more easily to people”. The paper notes that existing rules already identify and offer additional protection to certain priority habitats and species, where a significant portion of their natural range falls in the UK – giving blanket bogs as one such example. It also suggests exploring scalable levels of protection within one type of designation, which it suggests could (i) help support recovery through higher protection levels where needed (ii) offer scope to adapt sites more easily to climate change or (iii) enhance protections to areas of particularly significant nature value.
By contrast, for marine sites, the paper notes that despite the multiple designation types, the MPA network is “ecologically coherent”. But, given that the range of marine designation types can cause confusion, there may be benefits to consolidating designations, which could mean a single designation type (such as Option 3) or formalising the current policy approach of MPAs and HPMAs into two designation types (i.e. an approach similar to Option 1).
(2) Reform/consolidation of the designation procedure
As set out above, notification (designation) of SSSIs is the responsibility of Natural England. By contrast, final decisions for other statutory designations (such as SACs and SPAs) rests with the Secretary of State.
The paper references the risks and opportunities from climate change impacting protected sites, noting that it is likely to become increasingly difficult to accommodate this impact unless designation and management processes are adapted. To solve this issue, it proposes to have “one consistent decision-making process as part of a rationalised site protection system” with one option being for it to rest with the Secretary of State, informed by the scientific advice of its statutory advisors “in a similar way to how SACs and SPAs are currently designated”.
In short, it proposes removing Natural England’s power to designate sites, and giving this to the Secretary of State, on the basis that having two designation processes means that the risks from climate change cannot be adequately addressed. It is not entirely clear how this follows, nor is it made clear, if there has to be one designation procedure, why the Secretary of State would be better placed to do this than Natural England. For those fearing that the Secretary of State, as opposed to Natural England, might be swayed by other concerns that nature protection, the paper seems to seek to allay such fear by emphasising that at any new decision-making process will “be consistent with our existing international commitments and be fully transparent with regard to the decisions taken”.
(3) Introduction of new nature recovery sites
The final area of ‘consolidation’ relates to nature recovery sites. The paper notes that designation of protected sites has not been successful in helping sites recover to a more favourable condition and avoiding further decline. To that end, it notes the new initiatives being brought forward (Nature Recovery Network, Biodiversity Net Gain, the Nature for Climate Fund and new contracts under Conservation Covenants) but also notes how it is considering whether a new sort of designation for nature’s recovery should be explored. To that end, it seeks views on several areas including:
– Identification (strategies to identify potential ‘Nature Recovery’ sites for formal consideration, such as those set out in the government’s vision for Local Nature Recovery Strategies)
– Safeguards (how the planning system can play a role in promoting environmental recovery and long-term sustainability)
– Management (suggesting less prescriptive management measures and a holistic approach)
– 30 by 30 (whether such sites should ‘count’ towards the 30 by 30 goal)
– At sea (creative thinking about opportunities for co-location and space sharing to maximise benefits for sea users while also protecting the marine environment).
The paper also references the recent ‘rewilding’ approaches that have been developed on land, noting how, due to failing to meet established selection criteria for designation (despite their benefits for biodiversity), they are frequently not recognised for the value they can bring in making space for nature. On the other hand, it notes the concern that designation of such sites could lead to management in ways that limit or inhibit the opportunity for other species and habitats to flourish. It therefore suggests providing flexibility as to what areas could be designated and also in the requirements following such a designation.
B. Scientific Judgment in site management and protection
This second part of Chapter 3 paints a pretty dismal picture of the Habitats Directive in operation – its “interpretation has often led to high levels of legal uncertainty which can be corrosive to good governance”; “process has become king and crowded out scientific judgment on individual cases”, and whether or not a certain activity should be altered or restricted is “guided as much by concerns about possible future legal challenge over decision making, as it is by the actual impact of the activity”. Another problem identified is that “the current process lacks the tools necessary to incentivise change on the main pressures and threats affecting a site, some of which are not subject to [Habitats Regulations Assessment]”
Strong criticism indeed, and it is worth noting that the HRA Review Working Group summary of findings (found here) presents a slightly less pessimistic picture. The experts highlighted the need for greater certainty and clarity throughout the HRA process, with key points being:
– Clarification of legal terminology and processes
– A need to make existing data readily available and user friendly
– Specific site advice accessible in one place
– Basing scientific judgements on a clearer framework of evidence (screening and assessment)
– Earlier consideration of avoidance or mitigation measures
– Earlier expert engagement to increase Local Planning Authority confidence in scientific evidence
They also suggested further exploration into:
– Use of strategic mitigation solutions to secure better outcomes from the assessment process
– A more strategic approach to “environmental compensation” to support nature recovery.
On the litigation risk, again the conclusion of the working group was more muted: “whilst it is a straightforward process in some respects, the amount and type of specialist evidence required coupled with the perceived risk of legal action, creates an elevated level of caution around decision-making.”
The Green Paper notes that the UK government wants to “fundamentally change” the way assessments under the Habitats Regulations work to create clearer expectations of the required evidence base at an early stage and with a focus on addressing the threats and pressures on and off site that will make the greatest difference to the site. In addition, there is a desire to “make sure there is space of individual evidence-based judgement by an individual case officer on an individual case”.
The paper identifies seven main areas for reform.
(1) Assessment and consent
In this section, the work of the HRA working group is referenced, namely their proposal for a single reformed assessment process which complements proposals for simplified site designations, and their suggestions for clarity, certainty and a strategic approach to mitigation.
It is suggested that the single assessment would remove some of the complexities from having a number of assessment regimes on SSSIs and provide greater certainty and consistency for users. The paper goes on to say that this single assessment would be supported by “a clearer decision-making framework aimed at addressing process and data issues, including the earlier consideration of alternative ways to implement a plan or project and mitigation measures and creating more reasonable and clearer expectations of the required evidence base.” However, there is no further detail at this stage as to what this framework would look like and how it would achieve those aims.
(2) Addressing the legacy impact of dormant SSSI consents
This second heading notes the problem that many SSSIs issued in the past which permit certain activities, might, if exercised, cause damage or deterioration to protected sites. It notes that currently Natural England has only limited powers to change such consents and that these can only be modified or revoked on a case-by-case basis and that such revocation may require compensation. However, no solution is proposed to address this issue – just that it needs to be addressed. It is interesting to note, however, that in previous sections the concern has been on the need for ‘site-specific’ and ‘case-by-case’ decision-making, whereas in the case of revocation, this is seen as part of the problem.
(3) Management of protected sites
Instead of the current focus on stopping the deterioration of protected sites, the Green paper underlines the need for a “future protection process which can also support the management of the site and nature recovery”. This again represents the shift identified at the start of the paper – away from conservation or maintaining the status quo, to focusing on improvement or recovery.
The paper suggests a greater role for Site Improvement Plans (‘SIPs’) as one option which would allow problems to be approached more strategically and in a more tailored way. SIPs currently exist as a tool for identifying actions that need to be taken by public, private and voluntary bodies on protected sites to address existing pressures and threats impacting their conservation status. The green paper suggests “making the concept [of SIPs] statutory”, as a means to increase their uptake as a basis for action.
(4) The Habitats Regulations: Power to amend the general duties
A further issue identified by the paper is that the requirements of the Habits Directive and the Wild Birds Directives (with regard to which public authorities are required to exercise their nature conservation functions) are not explicitly set out. The paper identifies this issue as providing scope for differing interpretations and disagreement, and emphasises the “new” power within the Environment Act to amend the ‘general duty’ under Regulation 9 to delivery domestic and international biodiversity duty.
(5) Management at sea
As for management at sea, the key area for exploration is whether existing processes in other legislation applying to the UK can delivery improved outcomes for MPAs and better support the objective or protecting important marine habits and species, as opposed to the current requirement for a HRA under Part 6 of the Habitats Regulations (which applies out to 12 nm).
(6) Environmental Impact Assessment
Tucked away on page 19 of the green paper, this section is of particular interest as it notes that the Government is “committed” to reform of both the SEA and EIA process “to better support nature recovery”. One reason why this is particularly noteworthy is that both regimes are currently very broad, looking and impacts on “the environment” rather than just nature or habitats – so it will be interesting to see whether the reform proposes to narrow it or merely refined it in certain respects in the area of nature recovery.
It notes that the reforms “will ensure environmental protections are more relevant; and more closely monitored and enforceable with a stronger focus on delivering the outcomes we need” – in short, the revised EIA seems like it will no longer be about assessment for the purposes of informed decision-making but may set down targets or rules to deliver outcomes. An interesting approach in a paper determined to be less “prescriptive”. The paper does not state when the proposals will be brought forward.
(7) Establishing priority areas for woodland creation
The final subheading looks at afforestation projects, noting that the existing requirement for a determination under the forestry EIA regulations can be resource and time intensive. The paper proposes that the Forestry Commission undertake an Afforestation Strategic Assessment, described as a “landscape scale scoping project” assessing the relevant features likely to be affected by afforestation, with the aim of establishing preferred low risk areas for afforestation. Afforestation projects within those areas would then not require an individual EIA or equivalent impact assessment (except in “exceptional circumstances”). The aim is to “kick-start” afforestation projects and encourage locating new woodland in areas of the least risk to surrounding habitats
Implications of NE’s updated generic Nutrient Neutrality Methodology and updated catchment calculators referred to on page 4 of its 16 March 2022 letter
The updated methodology and calculators are appended to the letter, which advises that individual authorities consider how to transition to “the new tools and guidance”.
My blog post focused on the implications for areas not previously caught by nutrient neutrality issues but of course the guidance also creates an element of uncertainty for areas already caught, where good progress has been made towards solutions, if calculations need to be amended and given that there can be no certainty as to what transitional period (if any) each authority will allow for.
Examples of progress
A huge amount has gone into developing strategic mitigation solutions, but it is inevitably complicated – involving multiple land interests, commercial arrangements, local authority joint working, robust survey work and ecological analysis. The Solent nutrient market pilot is a great example – see this LinkedIn post by Simon Kennedy last month, strategic environmental planning officer for the Partnership for South Hampshire.
As another example, in Kent, Ashford Borough Council is progressing with a strategic mitigation solution in relation to potential effects on Stodmarsh Lakes, taking a report to cabinet on 31 March 2022.
Let’s hope that the new advice does not slow down progress in relation to these initiatives. Let’s also hope that these pioneers pave the way for a much faster roll out of solutions for the additional areas now caught.
Another dark cloud?
The Natural England advice letter also referenced last year’s High Court ruling, R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021), which is currently subject to an appeal – which the Court of Appeal will hear in the first week of April 2022. The advice should be regarded as provisional until the outcome of that case. The concern is that the case concerned a challenge to Natural England’s 2020 advice on achieving nutrient neutrality in the Solent region on the basis that the advice, in effect, was not stringent enough – see our Town Library summary of the first instance ruling prepared last year by my colleague Safiyah Islam. The court rejected the challenge but if the Court of Appeal takes a different stance then Natural England may need again to reconsider its methodology.
Reserved matters and pre-commencement conditions
One particularly unfair aspect of the way in which many local planning authorities are applying Natural England’s advice is to assert that if the necessary Conservation of Habitats Regulations assessment work was not done at planning permission stage (which will often not have been the case if the nutrient neutrality issue had not been identified by Natural England at that point) it must now be done at reserved matters stage, in the case of an outline planning permission, or at the stage of discharge of any pre-commencement condition, in the case of a full planning permission.
This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.
Local planning authorities appear to base their position on a decision of the High Court (i.e. a first instance ruling, not the Court of Appeal or Supreme Court) in R (Wingfield) v. Canterbury City Council (Lang J, 24 July 2019), but surely the case is capable of being distinguished in at least the following ways:
• The basic facts were different – a claimant was seeking to quash the outline planning permission because the LPA had failed to carry out appropriate assessment in a lawful manner. The developer and LPA had accepted there was a breach but had sought to rectify it by carrying out appropriate assessment at reserved matters stage – which the court agreed remedied the breach. This was not a case where the developer was challenging the ability of the LPA to undertake appropriate assessment at reserved matters stage or indeed to require appropriate assessment at that stage.
• Lang J relied in her reasoning on the Habitats Directive and interpretation of the Directive in rulings of the Court of Justice of the European Union. That was permissible at that time but since 1 January 2021 is no longer how the UK courts are able to approach these issues. The Habitats Regulations are now to be interpreted on their own terms without reference to the Directive. This potentially gives the UK courts the opportunity to ensure that the approach to assessment in relation to the stages of decision making allowed for in the Town and Country Planning Act 1990 are consistent with the legislative framework of the 1990 Act – i.e. issues of principle are for outline permission stage, with the outline permission setting the parameters for subsequent more detailed decision making at reserved matters stage and discharge of other conditions – but without the principle of the basic acceptability of the development being able to be re-visited at those later stages.
It should also be noted that regulation 70 of the 2017 Regulations is headed “grant of planning permission” and provides that the “assessment provisions” apply to specified categories of decision. None of these is a decision to grant reserved matters approval, or a decision to discharge a pre-commencement condition.
Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?
And lastly
Just to note that there was also a Welsh case on nitrates last week, R (National Farmers Union of England and Wales) v Welsh Ministers (Sir Wyn Williams, 23 March 2022). Welsh farmers are unhappy about the Welsh Government ending, post-Brexit, certain dispensations as to the amount of livestock manure that can be deposited on grassland. The claim, based on an asserted breach of legitimate expectation, as well as lack of rationality, failed.
This coming Tuesday 29 March at 6pm we will be focusing on all of these Natural England neutrality issues: “More Natural England Development Bans – What To Do?” – there is so much to cover with our panellists, who will include Charles Banner QC, Mary Cook, Tim Goodwin (Ecology Solutions) and Peter Home (Paris Smith). Link here.
“If a tree falls in a forest and no one is around to hear it, does it make a sound?”
Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.
Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.
– making interim targets for nature, air, water and waste legally binding;
– requiring the Government to make a formal declaration of a biodiversity and climate emergency;
– a more ambitious approach to targets in air pollution;
– making soil health a priority;
– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.
However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.
Habitats Regulations: limits on powers to amend
Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”
It was passed 201 to 186.
The amendment provides that the Secretary of State may only amend the regulations
“for the purposes of—
(a) securing compliance with an international environmental obligation, or
(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;
(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and
(i) following public consultation and consultation with—
(ii) the Office for Environmental Protection,
(iii) Natural England,
(iv) the Joint Nature Conservation Committee, and
(v) other relevant expert bodies.”
Duty to implement an enhanced protection standard for ancient woodland in England
Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”
It was passed 193 to 189.
The amendment introduces the following additional clause into the Bill:
(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.
(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.
(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.
(4) This standard must be that—
(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,
(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,
(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.
(5) This buffer zone must be whichever is greater of—
(a) an area which is a radius of 15 times the diameter of the tree with no cap, or
(b) 5 metres beyond the crown.”
The debate is here and Parliament’s summary of the House of Lords report stage is here.
(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)
As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:
“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.
Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”
That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.
Keep your ears open is all I’m saying…
Simon Ricketts, 17 September 2021
Personal views, et cetera
And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.
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 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 .
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”
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
It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.
Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.
However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.
I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.
NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.
Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:
Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.
Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).
As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:
(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.
The following were in the draft but no longer appear:
⁃ the principle of sustainable development
⁃ the principle of public access to environmental information
⁃ the principle of public participation in environmental decision-making, and
⁃ the principle of access to justice in relation to environmental matters
I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?
Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.
The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –
(a) the protection of the natural environment, and
(b) the improvement of the natural environment”.
One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:
“We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”
My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.
I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.
To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.
“(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.
(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).
(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.
(8) Where the Upper Tribunal makes a statement of non-compliance it may grant
any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
(b) be detrimental to good administration.”
The Government’s Response said this:
“The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”
Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.
There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:
⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008
⁃ taxation, spending or the allocation of resources within government.
Thumbnail sketch of the rest of the Bill
Part 3 covers waste and resource efficiency, including:
⁃ producer responsibility obligations
⁃ deposit schemes and charges for single use plastic items
⁃ managing waste
⁃ waste enforcement
Part 4 covers air quality and the environmental recall of motor vehicles.
Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.
Part 6 covers nature and biodiversity, including:
⁃ biodiversity
⁃ local nature recovery strategies
⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).
The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:
“Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.
Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.
More anon.
Part 7 covers conservation covenants.
These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.
As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.”
Again, more anon.
Concluding remarks
So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.
This is intended to be an update as to appropriate assessment under the Conservation of Habitats and Species Regulations 2017 rather than a blog post on the domestic effect of EU environmental law post-Brexit.
But I’ll address that briefly first:
EU environmental law post-Brexit
The position remains pretty much as summarised in my 18 September 2018 blog post Planning, Brexit, supplemented by my 22 December 2018 blog post The Office For Environmental Protection. Whilst there is a general initial saving for EU-derived domestic legislation and whilst section 16 of the EU (Withdrawal) Act 2018 sets a process for maintaining EU environmental principles, the “no deal” risks are still that:
(1) the latter depends on an Environment Bill being laid before Parliament and enacted (we so far have only seen draft provisions of the most directly relevant parts of what is proposed), a set of draft environmental principles being consulted upon and approved and the new Office for Environmental Protection being established, all before 31 October 2019 and
(2) post-Brexit, all EU-derived domestic legislation will be reviewed as to its continuing appropriateness and the degree of protection as regards this, presently provided by the environmental principles and governance mechanism in section 16, could easily be amended, replaced or sidestepped by this or a subsequent government.
DEFRA published an Environment Bill summer policy statement on 23 July 2019 but, whilst I am sure the war cabinet talks of little else, there simply is not the time available for the environmental principles and governance machinery to be up and running by the end of October 2019. Even when the machinery is established, it is susceptible to subsequent tinkering and dismantling by way of subsequent legislation.
In England and Wales the main problems caused by the judgment have revolved around:
(1) authorities being caught out through no longer being able to screen out the need for appropriate assessment by relying upon commitments to introduce mitigation measures;
(2) until the February 2019 changes to the NPPF, the disapplication of the NPPF’s “tilted balance” where appropriate assessment is required.
MHCLG has now included within its Planning Practice Guidance a specific section dealing with appropriate assessment (22 July 2019).
By coincidence, two days after the new guidance was published, two separate judgments were handed down by the High Court on different aspects of the appropriate assessment regime, both cases stemming from People Over Wind issues and both cases examples of plain bad timing.
Gladman Developments Limited v Secretary of State (Dove J, 24 July 2019) was a challenge by Gladman to the dismissal by the Secretary of State of its appeal in respect of a proposed development of 225 dwellings in Cliffe Woods, Kent.
The inquiry had been held in November 2017, pre People Over Wind. The parties agreed that the tilted balance applied in favour of the proposal as there was a shortfall in the Medway Council’s five year housing land supply. The parties also agreed that a condition requiring an environmental construction management plan was sufficient to mitigate any ecological concerns. Following an HRA screening process that took into account a financial contribution towards a strategic access management and mitigation strategy (SAMMS) “no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.”
The inspector recommended approval in his report dated 29 March 2018. The People Over Wind judgment was handed down on 12 April 2018. The Secretary of State invited representations from the parties as to whether appropriate assessment was now required in the light of the judgment, and on their views as to the correct application of planning policy in the light of it – a reference to paragraph 119 in the 2012 NPPF which disapplied the tilted balance in circumstances in the case of development requiring appropriate assessment.
Gladman submitted as part of its representations a report prepared by its ecologists, information to ensure that the inspector could carry out appropriate assessment and reach a conclusion that there were no likely significant effects on the integrity of of the SPAs. It also submitted that it would be “illogical and perverse to disengage the tilted balance in these circumstances”.
Before the Secretary of State reached his decision on the appeal, more generally on 26 October 2018 he embarked a technical consultation as to potential changes to the methodology for assessing local housing need and as part of that consultation he sought views on his proposal to amend the NPPF to make it clear that the tilted balance “is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place”, having missed the opportunity to make that change in the 24 July 2018 version (within which paragraph 177 simply replicated the old paragraph 119).
The Secretary of State’s decision letter was issued on 9 November 2018. He found that appropriate assessment was required and stated that on the basis of the appropriate assessment which he had carried out he could “safely conclude that the proposed development would not adversely affect the integrity of any European site”. He noted that under paragraph 177 of the 2018 NPPF “the presumption in favour of sustainable development does not apply where development requiring appropriate assessment is being determined”. He dismissed the appeal.
Gladman challenged the decision on a number of grounds, including irrationality in his application of paragraph 177 in the circumstances of the appeal, failure to have regard to the contents of the technical consultation, failure specifically to consult Gladman in relation to the technical consultation and contending that People Over Wind was wrongly decided, requiring a reference to the CJEU to clarify the position.
Dove J rejected all of the grounds. There was nothing unlawful in the way in which the Secretary of State had applied paragraph 177. It was “applied in a straight forward and uncomplicated manner to the circumstances of the present case”. The technical consultation was only a consultation. Indeed:
“I see nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge. For a consultation exercise to be lawful it must be engaged in with an open mind. That must contemplate a number of potential outcomes from the consultation process, (including, potentially, no change to the policy) which could be undermined by the premature second guessing of its outcome through the application of a policy which was being consulted upon. In my view the First Defendant’s approach in applying his existing policy in the present case was in principle entirely correct.”
There was no basis for asserting that Gladman should have been specifically consulted as part of the technical consultation and in any event they had not been prejudiced by any failure to consult.
Lastly, he was unpersuaded that there was any justification for the reference sought to the CJEU or that People Over Wind was wrongly decided: “the need for full and precise analysis removing all reasonable scientific doubt, reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive…Whilst there may be cases in which the existence of significant effects could be addressed by the examination of mitigating measures at the Appropriate Assessment screening stage that is not, in principle, any justification for not undertaking the Appropriate Assessment itself.” Furthermore, as also relied upon by the CJEU in People Over Wind, “the taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.”
The final kick in the teeth for Gladman must have come when, after the 24 July 2018 version of the NPPF missed the obvious opportunity to resolve the widespread problems caused by People Over Wind, it was finally put right in the 19 February 2019 version. So if the decision letter had been issued either at least six weeks before the 12 April 2018 ruling in People Over Wind (such that the decision was beyond the legal challenge period) or after 19 February 2019, the chances are they would have had their permission. A Secretary of State who actually wanted to see housing would surely have sorted out the policy issue more quickly – or delayed the decision letter. Bad timing indeed.
The timing was similarly awkward in R (Wingfield) v Canterbury City Council & Redrow Homes South East (Lang J, 24 July 2019). Outline planning permission was obtained on 5 July 2017 for up to 250 dwellings and associated development at Hoplands Farm, Westbere, Kent. The site is near SPAs and an SAC. On the basis of mitigation proposals, Canterbury City Council concluded, having taken advice from Natural England, that appropriate assessment was not required.
The judicial review period expired without challenge and the site was sold to the interested party, Redrow Homes. Reserved matters approval was sought in December 2017 for the first phases of development. Then came that People Over Wind ruling on 12 April 2018. In the light of the judgment, the council carried out an appropriate assessment and concluded that, with mitigation, the project would have no adverse effect on the integrity of the European protected sites. Reserved matters approval was granted on 12 February 2019.
The claimants argued that “the Council acted in breach of EU law by failing to conduct an HRA before granting outline planning permission and impermissibly taking into account mitigation measures when screening the proposed development, contrary to the CJEU judgment in the People over Wind case. The effect of the judgment of the CJEU was to render the grant of outline planning permission a nullity, which could no longer be relied upon. Further or alternatively, when the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead, it unlawfully conducted an HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage, before the grant of outline planning permission.”
Lang J rejected both arguments. The submission that “the effect of the judgment of the CJEU in People Over Wind was to render the grant of outline planning permission a nullity was both contrary to authority, and wrong in principle. A decision made by a public body is valid unless and until it is quashed”. Further, “the Council could lawfully conduct an appropriate assessment at the reserved matters stage, in the circumstances of this case”.
“In considering whether the Council could legitimately remedy its earlier error by conducting an appropriate assessment at reserved matters stage, instead of revoking the grant of outline planning permission, I have taken into account that the consequences of revoking planning decisions long after they have been made, and the time limits for challenge have expired, are disruptive and undermine the principle of legal certainty. As Laws J. said in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415, at [424], applicants for judicial review must act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage.
In this case, the IP acquired its interest in the Site after outline planning permission had been granted and the time for bringing a judicial review challenged had expired. Although building operations have not yet commenced, time and money has been spent in bringing this project to fruition. The Council considers that the development will bring tangible benefits to the community, although local residents, such as the Claimant, take a different view.
In my judgment, the Council’s decision to remedy its earlier error by conducting an appropriate assessment at reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law […]
Alternatively if my analysis is not correct, I would nonetheless refuse relief in this case. The Court may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with.”
The claimant also sought to argue that the HRA was deficient. It was not:
“the HRA conducted by the Council was appropriate for the task in hand, particularly bearing in mind that the Council was able to draw upon the detailed research and assessment in the ‘Report to inform a Habitats Regulations Assessment’, as well as the further reports submitted by the IP. Its findings were complete, precise and definite and there were no significant lacunae. The Council was entitled to rely upon Natural England’s endorsement of its HRA, particularly since Natural England had initially raised concerns about the evidence-base provided by the applicants, and those concerns were addressed by the further evidence produced by the IP. Natural England, as the custodian of the Stodmarsh designated sites, was particularly well placed to judge the risks from the proposed development. In my view, the Claimant’s challenge did not come close to meeting the high threshold of Wednesbury irrationality; it was primarily a disagreement with the Council’s exercise of its planning judgment.”
So bad timing in this case for the claimant, unable to take advantage of the windfall that People Over Wind appeared to represent.
Even if we leave the EU, I suspect that we will not be leaving behind these sorts of arguments for a good time yet – and it is apparent from the Gladman case that (1) the resulting trip hazards are as often those introduced by our own domestic policies and (2) when it comes to CJEU cases such as People Over Wind, however inconvenient, our domestic courts are not going to be turning the clock back.
In this week of all Brexit weeks it was interesting to see the approach of the Court of Appeal in a case, R (Shirley) v Secretary of State (Court of Appeal, 25 January 2019), which turned on the practical extent of the Secretary of State’s duty to give effect to the objectives of the Air Quality Directive. The UK is under binding commitments in the Air Quality Directive to improve air quality, transposed into domestic law by way of the Air Quality Standards Regulations 2010. Was he required to call in for his own determination a planning application for development that would worsen or prolong breaches of limit values in an Air Quality Management Area (“AQMA”) for nitrogen dioxide or PM10?
Before we turn to the ruling, a quick update may be useful on the continuing saga of the Government’s continued failure to prepare a lawful Air Quality Plan in compliance with its duties under the Air Quality Directive (its deadline having been 1 January 2010) since my 4 November 2016 blog post The UK Government & Air Quality (ahem). At the point I wrote the blog post, the Supreme Court had ordered in April 2015 that the Government should prepare a legally compliant Air Quality Plan by the end of 2015, the Government had purported to publish compliant proposals on 17 December 2015 which were then found to be legally inadequate by Garnham J in his judgment in ClientEarth v Secretary of State (No. 2) (Garnham J, 2 November 2016). He gave the Government a further deadline of 31 July 2017.
The Government purported to comply by that deadline but Garnham J held that attempt too was deficient in a number of respects, in R (ClientEarth) v Secretary of State (No. 3) (Garnham J, 21 February 2018). He made a declaration as to the deficiencies as against the requirements of the Directive and Regulations, ordered the urgent production of a supplement to rectify the deficiencies and that the balance of the plan should remain in force in the meantime to avoid any delay in its implementation. His judgment concluded:
“I end this judgment where I began, by considering the history and significance of this litigation. It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.
It seems to me that the time has come for the Court to consider exercising a more flexible supervisory jurisdiction in this case than is commonplace. Such an application was made to me when the November 2016 judgment was handed down. I refused it on that occasion, opting for a more conventional form of order. Given present circumstances, however, I would invite submissions from all parties, both in writing and orally, as to whether it would be appropriate for the Court to grant a continuing liberty to apply, so that the Claimant can bring the matter back before the court, in the present proceedings, if there is evidence that either Defendant is falling short in its compliance with the terms of the order of the Court”.
The Government published a supplement to its plan on 5 October 2018 and as far as I know there has been no legal challenge to it or application back to Garnham J pursuant to his liberty to apply. So we may finally now have a legally compliant Air Quality Plan?
In the meantime, the European Commission has commenced infringement proceedings against the UK and other member states for delays in implementing the Directive.
To bring the narrative right up to date, the Government published its Clean Air Strategy on 14 January 2019, setting out proposed measures that will in due course form part of the forthcoming Environment Bill. On an initial reading there seems to be a deliberate shift away from the areas where the Government has found it difficult to comply with the Air Quality Directive, particularly in relation to polluting emissions from vehicles. From the foreword by Michael Gove:
“We often think of air pollution as a problem caused by road transport and industrial level burning of fossil fuels. These are two of the central sources of pollution, but industry and government have worked together to remedy many of the worst problems by incentivising the use of clean fuels and investing in new technology. We have already secured a significant reduction in emissions since the 1970s. But now this trajectory has slowed.
Now we need to tackle other sources of air pollutants that damage human health and the environment. Air pollution can be caused by intensive agricultural food production, heating our homes or even cleaning with certain solvents”
Whether that is well based is for others to judge.
But perhaps more of that another day and now back to Shirley. The appeal before the Court of Appeal concerned an application by Corinthian Mountfield Limited for planning permission for 4,000 dwellings and associated development that had been resolved to be approved by Canterbury Borough Council.
Dove J had rejected the appellants’ claim for judicial review of the Secretary of State’s decision not to call in the application. The Court of Appeal considered three grounds of appeal:
“(1) whether the preparation and implementation of an air quality plan complying with Article 23 of the Air Quality Directive would be a sufficient response to breaches of limit values (ground 1 in the appellant’s notice);
(2) whether the Secretary of State had a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of the limit values, and was therefore obliged to call in Corinthian Mountfield’s application for planning permission (ground 2); and
(3) whether it was irrational for the Secretary of State to assume that any errors in the city council’s approach could be put right if it reconsidered the application, or could be brought before the court in a claim for judicial review if planning permission were granted (ground 3).”
The point is an important practical one – if a project is likely to increase exceedances of pollutant limit values, does that by itself lead to the risk of call in or legal challenge?
“Is the preparation and implementation of an air quality plan complying with article 23 of the Air Quality Directive a sufficient response to breaches of limit values?
Article 13 of the Directive, transposed by Regulation 17 of the Regulations, requires the Secretary of State to ensure that levels of specified pollutants do not exceed defined limit values. In zones where levels are below the limit values the Secretary of State must “ensure that levels are maintained below those limit values and must endeavour to maintain the best ambient air quality compatible with sustainable development“.
Article 23 of the Directive, transposed by Regulation 26 of the Regulations, requires that where exceedances of annual mean limit values of specified pollutants occur, the Secretary of State must draw up and implement an air quality plan to achieve the limit value.
Dove J had “concluded that when the limit values in the Air Quality Directive are exceeded, if article 13 is read with articles 22 and 23, the preparation and implementation of an air quality plan with a view to overcoming those exceedances and keeping their duration as short as possible is the “specific and bespoke remedy”. There was, he said, “no room within the scheme” of the Air Quality Directive for any “freestanding responsibility” to take any specific action on “permits” or “development consents”. He was “unable to read into the legislation any requirement to take particular actions in relation to permits or development consents”.
“For the appellants, Mr Robert McCracken Q.C. submitted that the judge had erred in his understanding of the Air Quality Directive and the 2010 regulations. He had failed to adopt a suitably purposive approach, failed to recognize the high level of environmental protection required by EU law, and failed to follow the approach taken by the Court of Justice of the European Union in relevant authority. He had not grasped that the Air Quality Directive requires the taking of action, not merely the preparation of air quality plans, and that the adoption and implementation of an air quality plan is a necessary but not a sufficient response to breaches of limit values…”
As referred to in my 4 November 2016 blog post, this has been Robert McCracken QC’s position for a long time – indeed in my blog post I included a link to his 2015 legal opinion to that effect.
Lindblom LJ examines in detail the Court of Justice of the European Union case law before agreeing with Dove J and rejecting the “purposive approach” argument:
“Dove J.’s description of article 23 as providing the “specific and bespoke remedy” for a breach of article 13 therefore seems apt. This does not mean that Member States may not also adopt other measures to address a breach of article 13, in addition to preparing and putting into effect an air quality plan complying with article 23. But nor does it mean that Member States are compelled by any provision of the Air Quality Directive to do that. A demonstrable breach of article 13 does not generate some unspecified obligation beyond the preparation and implementation of an air quality plan that complies with article 23. The case law does not suggest, for example, that in such circumstances a Member State must ensure that land use planning powers and duties are exercised in a particular way – such as by imposing a moratorium on grants of planning permission for particular forms of development, or for development of a particular scale, whose effect might be to perpetuate or increase exceedances of limit values, or by ensuring that decisions on such proposals are taken only at ministerial level“.
Did the Secretary of State have a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of limit values?
Again, the answer was no:
“I cannot accept that argument. It finds no support in relevant case law. In my view, as Mr Maurici and Mr Pereira submitted, it is not possible to construe the provisions of the Air Quality Directive and the 2010 regulations as constraining the Secretary of State’s very wide discretion either to call in or not to call in an application for planning permission when the limit values under article 13 have not been complied with, or when an air quality plan under article 23 has not yet been put in place or has proved to be deficient or ineffective. The air quality legislation does not do that. It does not have the effect of narrowing the Secretary of State’s call-in discretion in such circumstances, let alone of transforming that discretion into a duty, or of requiring a particular application for planning permission to be refused. None of the provisions of the Air Quality Directive engages with the process of making decisions to authorize individual projects of development. If a proposed development would cause a limit value to be breached, or delay the remediation of such a breach, or worsen air quality in a particular area, neither the Air Quality Directive nor the 2010 regulations states that planning permission must be withheld or granted only subject to particular conditions. These may of course be material considerations when an application or appeal is decided, and so too the measures in an air quality plan for the relevant zone, if there is one, or in an action plan prepared under the Environment Act 1995. But the Air Quality Directive and the 2010 regulations do not, in those or any other circumstances, compel the decision-maker to refuse planning permission, or impose on the Secretary of State an obligation to make the decision himself.”
Was the Secretary of State’s decision not to call in the application irrational?
Given that planning permission had not yet been granted by the city council, it was open to the council to take the application back to committee if it was not called in.
Lindblom LJ held that the Secretary of State’s freedom to exercise his call-in discretion is considerable. “The Secretary of State also knew that if he did not call in the application, the city council would be able to consider it again, taking account of any further representations made to it, and, with the advice of its officers and professional consultants, revisiting the committee’s resolution to grant planning permission. And if planning permission were to be granted, it could be challenged by a claim for judicial review. It was not perverse for the Secretary of State to have these considerations in mind when he made his decision not to call in.”
Lastly, the Court of Appeal considered and rejected for four reasons the appellants’ submission that a reference should be made on the first ground of appeal to the Court of Justice of the European Union:
⁃ the appeal failed in any event on the other grounds so a decision on the questions in the reference would not be necessary to enable this court to give judgment;
⁃ the issue was in the court’s view “acte clair” (ie reasonably clear and free from doubt)
⁃ a reference would cause unjustifiable delay in a case where the decision under challenge was procedural, not substantive
⁃ a reference was opposed by all four respondents.
Concluding thoughts
The case is an interesting example of the way in which EU law has become so familiar to the lawyers and judges of our domestic courts. Nearly all of our environmental law is EU-derived. Post-Brexit, when EU-derived legislation such as the Air Quality Standards Regulations will continue to apply (unless and until amended or revoked) on a free-standing basis and without the backing of the Directive, it is inconceivable to imagine that we will not all in practice still draw upon the CJEU’s case law to assist in matters of interpretation.
Over time this may change, once our legislation starts to diverge with that of the EU (we see already the deliberately differing objectives and approaches of DEFRA’s Clean Air Strategy) and once differing strands of judicial interpretation start slowly to open up. It’s going to get complicated. Our judges will always be more resistant to the purposive approach to interpretation – legislation should mean what it says – which is why in our common law system it is so important that our laws are precise rather than broad statements of principle in the way that has led to so much litigation in relation to EU Directives.
The case also illustrates the scale of the hurdles to be cleared in persuading our courts to refer issues to the Court of Justice of the European Union. If there had been a reference in Shirley, could we have completely ruled out the prospect of a surprise finding, à la People Over Wind? I’m still grumbling, five years on, about the Supreme Court’s refusal in the HS2 Action Alliance case to refer the Strategic Environmental Assessment issues that we raised to the CJEU. The risk/prospect of referral is generally a low one.
The earlier ClientEarth sequence of cases (within which there was in fact a reference) raises the separate question as to whether it is sufficient for responsibility for compliance with environmental targets to remain with Parliament and whether the proposed Office for Environmental Protection would have sufficient power as against a future Government that is dragging its heels. Would the OEP be able to fulfil that supervisory role that Garnham J has had to take in the ClientEarth litigation?
But in the meantime, it is helpful to have the Court of Appeal’s clarification that non-compliance by the Government with its international responsibilities does not lead to what would effectively been an embargo on any form of development where it could be argued that there might be an adverse effect on air quality in an AQMA, regardless of the local improvement measures to which the relevant local authorities had committed under the Directive and Regulations, and regardless of the usual statutory requirement for decision makers to determine applications in accordance with the development plan unless material considerations indicate otherwise. It would have led to decision-making chaos.
But that shouldn’t let anyone off the hook. The onus really must continue to rest with the Government and local authorities to take the necessary steps to ensure that roadside emissions are reduced to acceptable levels, no matter how politically unpopular the implications (eg further charging zones, making it more expensive and less convenient to use a polluting vehicle and the reverse for users of public transport – and priority being given to pedestrians and cyclists in our cities). The onus must also rest with developers to seek to ensure that their proposals are, in the language of the draft London Plan, air quality neutral or positive.
Clean air may be invisible but surely, one day, it will be seen as a vote winner?
It is important that we understand the new regime that is proposed and start to form views as to whether it is fit for purpose, given that (1) its provisions will replace the environmental protections currently provided by way of EU law and that (2) it would be unfortunate if any new system were to introduce additional uncertainties, unnecessary requirements or causes of delay. What will the implications be for the English planning system?
Having said that we don’t yet have the full picture.
First, because (following a commitment given by the prime minister in July 2018) this draft Bill is going to be rolled into a wider Environment Bill in 2019 which, according to the draft Bill’s foreword by Michael Gove, “will contain specific measures to drive action on today’s crucial environmental issues: cleaning up our air, restoring and enhancing nature, improving waste management and resource efficiency, and managing our precious water resources better.”
Secondly, because this draft Bill does not yet include the Government’s commitment in the withdrawal agreement to “non regression” from current EU environmental laws (see my 16 November 2018 blog post Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement))although of course we wait to see what happens to that agreement, yet to be approved by Parliament.
Thirdly, because the provisions in the draft Bill are a framework for more detail to come forward by way of, for instance, a Government policy statement on environmental principles and a strategy to be prepared by the proposed Office for Environmental Protection setting out how it intends to exercise its functions. More on this later. What this draft Bill does do is discharge the requirement in section 16 of the EU (Withdrawal) Act 2018 for draft legislation to be published setting out the way in which environmental principles will be maintained post-Brexit, and the statutory body that will be established to police them (see my 18 September 2018 blog post Planning, Brexit).
Deal or no deal?
The intention is that this new legal regime should in place ready for when we leave the jurisdiction of EU law. Whilst if we have a withdrawal agreement this will be at the end of any transition period, we could be left with a potential hiatus in the case of a “no deal” Brexit. If there’s no deal there will be more urgently newsworthy issues than the implications of that situation for the environment (it was noteworthy that the publication of the draft Bill last week attracted no real attention from the mainstream media as far as I could see) but this was rightly a matter of concern for the House of Commons Environmental Audit Committee in its report on the Government’s 25 Year Plan for the Environment, to which the Government in its 6 November 2018 Response said this:
“Government is confident of leaving the EU with a deal on an implementation period, which the EU has also confirmed it would like to agree. However, we are stepping up preparations within government and Defra to make sure that a new statutory body is in place as soon as is practically achievable in the event of a no deal exit, with the necessary powers to review and, if necessary, take enforcement action in respect of ongoing breaches of environmental law after the jurisdiction of the CJEU has ended. This will mean that the Government will be held accountable as under existing EU law from the day we leave the EU.
As mentioned previously, the EU (Withdrawal) Act will ensure existing EU environmental law continues to have effect in UK law after exit, providing businesses and stakeholders with maximum certainty as we leave the EU. Until the new body is in place, for example, existing mechanisms will continue to apply: the Parliamentary Ombudsman will process complaints about maladministration; and third parties will be able to apply for Judicial Review against government and public authorities.”
The draft Bill
If you click into the draft Bill – and please do because this blog post is not a complete summary – you will see that the draft legislation itself (34 clauses and a schedule) is sandwiched between:
⁃ Michael Gove’s foreword – the first paragraph will give you an idea of the tone:
“Leaving the European Union is a once-in-a-lifetime opportunity for this country to help make our planet greener and cleaner, healthier and happier. We are seizing this chance to set a new direction for environmental protection and governance, in line with the government’s ambition to leave our environment in a better state than we inherited it.”
⁃ A long set of explanatory notes which include an explanation of the policy and legal background as well as a detailed commentary on the provisions of the draft Bill, including much by way of statements of what is intended that is absent from the draft Bill itself.
The foreword describes the two main strands of the draft Bill (although in the reverse order to how they are actually dealt with).
“Firstly, we will establish a world-leading, statutory and independent environment body: the Office for Environmental Protection (OEP). This body will scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.
Secondly, we will establish a clear set of environmental principles, accompanied by a policy statement to make sure these principles are enshrined in the process of making and developing policies”
“(a) population and human health;
(b) biodiversity, […];
(c) land, soil, water, air and climate;
(d) material assets, cultural heritage and the landscape;
(e) the interaction between the factors referred to in points (a) to (d).”
However, in the draft Bill a much narrower definition is adopted:
“31 (2) Environmental matters are—
(a) protecting the natural environment from the effects of human activity;
(b) protecting people from the effects of human activity on the natural environment;
(c) maintaining, restoring or enhancing the natural environment;
(d) monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”
So this is just about the “natural environment“, defined in clause 30 as
“(a) wild animals, plants and other living organisms,
(b) their habitats,
(c) land, water and air (except buildings or other structures and water or
air inside them),
and the natural systems, cycles and processes through which they interact.”
“Environmental law” is even narrower, as it is defined as any legislative provision (other than legislation devolved to the Scottish Parliament, Welsh Assembly or, without the Secretary of State’s consent, the Northern Ireland Assembly) that is mainly concerned with an environmental matter and that is not concerned with an excluded matter – excluded matters are:
⁃ greenhouse gas emissions;
⁃ access to information;
⁃ the armed forces, defence or national security;
⁃ taxation, spending or the allocation of resources with government.
The Secretary of State can by regulations specify specific legislative provisions as falling within or outside the definition of “environmental law“.
The explanatory notes to the draft Bill say that, based on these provisions “most parts of legislation concerning the following matters, for example, would normally be considered to constitute environmental law:
⁃ air quality (although not indoor air quality);
⁃ water resources and quality;
⁃ marine, coastal or nature conservation;
⁃ waste management;
⁃ pollution;
⁃ contaminated land.
They go on to assert that the following matters would not normally constitute environmental law:
⁃ forestry;
⁃ flooding;
⁃ navigation;
⁃ town and country planning;
⁃ people’s enjoyment of or access to the natural environment;
⁃ cultural heritage;
⁃ animal welfare or sentience;
⁃ animal or plant health (including medicines and veterinary products);
⁃ health and safety at work.
“”Environmental principles” means the following principles—
(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) the principle of public access to environmental information,
(h) the principle of public participation in environmental decision-making, and
(i) the principle of access to justice in relation to environmental matters”
What the Secretary of State must do
The draft Bill provides that Secretary of State must prepare a policy statement on environmental principles. “The statement must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies.” It may also explain how ministers, “when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.” Ministers must “have regard” to the policy statement “when making, developing or revising policies dealt with by the statement“. Nothing in the statement shall require a minister to take (or to refrain from taking) any action if it “would have no significant environmental benefit” or “would be in any way disproportionate to the environmental benefit“.
Wow! Regardless of how robust or otherwise the policy statement turns out to be, count the get-outs in that last paragraph.
The draft Bill also provides that the Secretary of State must prepare an environmental improvement plan. The first one will be the current document entitled “A green future: our 25 year plan to improve the environment” (11 January 2018). It must be kept under review, with the next to be completed by 31 January 2023 and thereafter at least every five years.
The Office for Environmental Protection
Details of the membership, staffing and functions of this new body are set out in the schedule to the draft Bill.
The Office for Environmental Protection would monitor and report on environmental improvement plans, monitor the implementation of environmental law, and advise on proposed changes to environmental law. It would also have an important enforcement role.
It must prepare a strategy setting out how it intends to exercise its functions, including its complaints and enforcement policy, having regard to “the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—
(a) that relate to ongoing or recurrent conduct,
(b) that relate to conduct that the OEP considers may cause (or has caused) significant damage to the natural environment or to human health, or
(c) that the OEP considers may raise a point of environmental law of general public importance.”
The explanatory notes suggest that individual planning decisions will not be a focus of the OEP’s attention:
“The definition of national implications will be for the OEP to determine, but this provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of primarily local concern. For example, an individual local planning or environmental permitting decision would not normally have national implications, whereas a matter with impacts or consequences which go beyond specific local areas or regions could have.
Anyone except public bodies can raise a complaint with the OEP where a public authority has failed to comply with environmental law. The public authority’s internal complaints procedure must first have been exhausted. The explanatory notes state:
“A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures which will apply to their functions concerned with the implementation of environmental law.”
Complaints must be made within a year of the failure complained of, or within three months of when any internal complaints procedure was exhausted. The OEP “may” carry out an investigation if in its view the complaint indicates that the authority has failed to comply with environmental law and “the failure is serious“. It must provide to the authority a report as to whether it considers that the authority has failed to comply with environmental law, its reasoning and recommendations (whether for the authority or generally) in the light of its conclusions. There will be a process of information notices and decision notices. The authority receiving a decision notice must respond within two months or such later timescale is given, setting out whether it agrees with the notice and what steps it intends to take.
There is then a curious clause, clause 25, which deals with enforcement. Within three months of the deadline for the authority responding to the decision notice, the OEP can make an application to the High Court for judicial review. After any such proceedings, the relevant authority must publish a statement “that sets out the steps (if any) it intends to take in light of the outcome of those proceedings“.
So what would these proceedings seek to achieve? A declaration from the court or something more, some kind of enforcing order? Would the authority’s decision that is the subject of the complaint be liable to be quashed? If so, plainly concerns arise that decisions will no longer be able to be safely relied upon by parties where the usual judicial review period has expired – it would be worrying if decisions could be at risk for much longer via this elongated OEP complaints procedure.
Concluding thoughts
Without seeing the rest of what will be in the eventual Environment Bill, and without see the nature of any “non regression” commitment (if indeed it survives the current politics), I’m left feeling entirely unclear what practical role the mechanisms in the draft Bill will really have. There are certainly numerous questions:
⁃ Are the definition of environmental matters and environmental law too narrow?
⁃ Will the policy statement on environmental principles either be too weak or alternatively extend its reach into other regimes, for instance leading to the risk of causing confusion as to the application of principles set out in the National Planning Policy Framework?
⁃ Are there too many get-outs on the part of Government?
⁃ Will the OEP really be able to influence the Government’s approach when it comes to politically contentious issues? The Committee on Climate Change has not been a good precedent.
⁃ Is there confusion as to the role of the OEP when it comes to investigating possible breaches of environmental law, in that surely this is a matter for existing enforcement bodies such as the Environment Agency and for the courts?
And whilst from the explanatory notes the intention appears to be that this regime would not directly affect town and country planning, in reality matters such as environmental impact assessment, strategic environmental assessment and the treatment of protected nature conservation sites are central to the planning process, so it seems to me that unfortunately this isn’t a debate that planners and planning lawyers can ignore.
SIMONICITY 