Category: Brexit

Nightmare On Marsham Street: What Now?

So much for fixing the broken housing market. Those poor DCLG civil servants. Here we are again in wholly uncertain territory – anathema to planning, anathema to business. In the aftermath of the Brexit vote I wrote a blog post on how we can possibly give any useful advice in these sorts of situations, How To Predict; How To Advise.
This blog post simply sets out various questions, to which I do not know the answer. 
First, how long will May stay as PM? Will we see a Conservative leadership challenge, will we have an early election (again)?
Secondly, will May lead a minority government, dependent vote by vote, issue by issue on the DUP and/or common positions with other parties, or will this be a true coalition government with a formal coalition agreement? In either case, what terms will the DUP extract? This will certainly be an early test for the PM of her negotiating skills, ahead of the start of Brexit talks that start on 19 June (the same day as the Queen’s Speech – the future comes at you fast doesn’t it…) and indeed ahead of the resumption of Parliament on 13 June. Will she be able to bring her own party to the table with the DUP given the DUP’s stance on LGBT, abortion and climate change (on the last of which, see this 9 June 2017 Greenpeace summary)? Will an alliance with the DUP be consistent with the Northern Ireland power-sharing arrangements within the Good Friday Agreement? Are they a competent partner, given for instance the “cash for ash” debacle that has cost all of us dear (see i-news 17 May 2017 )?
Thirdly, specifically in relation to planning matters in England, does a minority government matter, given a Conservative majority within England itself? After all, when it comes to planning and other devolved matters, the EVEL (English Votes For English Laws) amendments made in 2015 to Parliamentary standing orders come into play. As with matters of Northern Irish politics, the detailed operation of EVEL is far from my special subject, but basically if provision in legislative business is certified by the Speaker as only affecting England, or England and Wales, and within devolved legislative competence, only the members of Parliament within the relevant administrations have a vote. This is all explained in more detail in a House of Commons Library research paper  (2 December 2015). In fact the Housing and Planning Bill was the first to have its provisions certified, on 28 October 2015, under the new standing orders. Short of legislation, many other planning functions of the Secretary of State can of course be conducted without the need for a vote in Parliament, although necessarily only by proceeding with extreme caution given the political vulnerability. Two other thoughts on this issue: (1) the standing orders can be changed by a simple majority – a minority government will be vulnerable to that, so for how long will EVEL survive? and (2) EVEL of course means that DUP votes count for nothing in relation to English and Welsh devolved matters.  
Fourthly, who will the ministerial team be? Former housing and planning minister Gavin Barwell of course lost his seat and it will be tough to replace him with someone with an equivalent grasp of the detail (although it does seem like yesterday that I wrote my 17 July 2016 blog post when his appointment was first announced). Whilst Secretary of State Sajid Javid retained his seat, he has long been rumoured as out of favour with the PM (eg Conservative Home piece  8 February 2017) but, with the new mantra of ‘stability’, will he stay in position?
Fifthly, what of the current policy agenda, with so many pieces of unfinished business? I set out where things were left in my 21.4.17 blog post, Parliament, Purdah, Planning. Is it realistic to expect a new incumbent to make quick progress, simply accepting the previous agenda and direction? Surely not. Save for the most technical, least politically sensitive matters, a delay surely is to be expected. Whether that matters in most areas is another question – on the one hand we have all been using that ‘stability’ mantra for a long time but on the other hand, if the repeated Conservative manifesto commitment on housing numbers is to be achieved, we can’t carry on as we are. As Einstein may or may not have said, doing the same thing over and over again and expecting different results = insanity. 
Sixthly, is there the political capacity at the moment for more far-reaching reforms? Surely, faced the unique challenge of the Article 50 negotiations (with their fixed March 2019 deadline) and a precarious hold on power, the prospects of radical thinking in any other area, including planning and infrastructure, have significantly receded. In practice, how much time will the cabinet have for CIL reform let alone more radical land value capture/compulsory purchase compensation law changes; or for HS2 phase 2, let alone Crossail 2?
Nightmarish? Possibly. Fascinating? Absolutely!!
Simon Ricketts 10.6.17
Personal views, et cetera

(EIA + SEA) – EU = ?

Deadlines, deadlines. 
The EU’s 2014 amending directive on environmental impact assessment  has to be transposed by member states into domestic law by 16 May 2017. 
Given that Theresa May has announced that Article 50 of the Lisbon Treaty will be invoked by the UK government by the end of March 2017, which would see us out of the EU by the end of March 2019, does the 16 May 2017 deadline matter?
The Scottish Government is currently consulting  on transposition, with a consultation deadline of 31 October 2016. The Welsh Government is consulting  with a consultation deadline of 11 November 2016. 
I have seen no signs of any equivalent work underway for England or Northern Ireland, despite the lengthy lead-in period to the transposition process if it is to be done in accordance with the UK government’s own guidance .

This can only be deliberate but is going to lead to problems for developers and LPAs alike. 
What does the amending Directive change?
The changes are significant. For instance:
– More information is to be provided with requests for screening opinions, requiring more analysis and work at an earlier stage

– Mitigation measures considered at the screening stage need to be specified and retained in the final development proposals

– Reasoning for screening opinions and directions are expressly required

– If a scoping opinion is obtained, the ES must comply with it

– The Environmental Statement becomes an ‘EIA Report’

– It will need to be prepared by ‘accredited and technically competent experts’

– Decision makers in reaching decisions will need to decide whether the environmental information is up to date or whether further updated information is required

– The decision maker will need to decide whether to impose monitoring obligations to cover the implementation and management of the project

– The minimum public consultation period in relation to the EIA report will be 30 days (whereas the UK minimum period is of course 21 days).

It is not of course unknown for a member state to be late in transposing a Directive, but there are real consequences. The state can be fined for its failure to transpose. But, of more specific relevance to developers and LPAs, the failure to transpose the Directive by the deadline can in some circumstances lead to grounds of challenge for a claimant when, for instance, seeking to challenge a planning permission on the basis that the LPA has not complied with the requirements of the Directive. The Directive applies where projects have not been screened or scoped – or the subject of an ES submitted – by 16 May 2017. 
So, pre 16 May 2017, the 2011 Regulations will continue to apply (as long as you have screened, scoped or submitted) and post 16 May 2017 it would be prudent to comply with the substance of the amending Directive. 
But what will happen once we have left the EU? Well of course we have been promised the ‘Great Reform Bill’ which seems designed to retain UK legislation that transposes EU legislation in some holding pen, from which laws will be taken out individually over time to be amended or repealed. Accordingly, even after March 2019 (or whenever our exit from the EU turns out to be) the 2011 EIA Regulations (as amended from time to time) will continue to apply until further notice.
In my view it would be a mistake to envisage any substantial repeal of environmental impact assessment legislation, as opposed to attempts no doubt at streamlining. 
Accordingly, the stream of EIA case law will undoubtedly continue. Some 2016 highlights:
R (XY) v Maidstone Borough Council  (Deputy High Court Judge Rhodri Price-Lewis QC) – held that negative screening opinion was lawful – on the facts no requirement to treat proposal for gypsy site as inevitably part of a larger development proposal given other similar proposals in the area. 
R (Jedwell) v Denbighshire County Council  (Hickinbottom J, 16 March 2016) – reasons for negative screening opinion not given within a reasonable period of time but permission not quashed. 
R (Licensed Taxi Drivers Association) v Transport for London  (Patterson J, 10 February 2016) – challenge to London’s east-west cycle superhighway failed – determination of adverse environmental effects was for the LPA.
SEA
The SEA Directive  is fully transposed into law in England by the Environmental Assessment of Plans and Programmes Regulations 2004  – also destined for the Great Repeal Bill holding pen. 
In the meantime the cases continue. According to a Landmark Chambers update  we await the outcome of R (RTE Built Environment Limited) v Cornwall Council in relation to the St Ives Neighbourhood Plan, with its proposed second homes ban, following a hearing on 6 October 2016. 
More selfishly, a number of us who have contributed chapters to the forthcoming book by Greg Jones QC and Eloise Scotford, The Strategic Environmental Directive: A Plan For Success?  are hoping that it has a long and relevant shelf-life….

Simon Ricketts 8.10.16
Personal views, et cetera

Short-term implications for planning of that vote

This blog post was going to be about class C of the Use Classes Order.Instead here’s my personal take on the short-term implications for planning of that referendum vote. The most immediate implications are nothing about planning or planning law at all.

1. Obviously market volatility and uncertainty. Many investors and developers will batten down the hatches and proceed with extreme caution. But planning is a long-term activity and sensible investment in the planning process will continue

2. Others with appropriate funding may see pricing opportunities due to the strength of the immediate market reaction. So there will be some quick transactions.

3. Viability on many schemes will have changed overnight although we need to get over the initial shock wave.

4. LPAs may wish to grasp those schemes that will proceed notwithstanding the market disruption – they will be at a premium.

5. Mayor Sadiq Khan has a huge role to play. His mandate in London has been reinforced and he will represent stability in contrast to the confusion and chaos of central government, which will be distracted away from the big planning law issues.

6. A question mark now against at least the timing of some major infrastructure projects, including HS2, until we see the new Cabinet and until the economic implications of the referendum decision play out.

7. Delays to current planning law reforms where any significant ministerial thinking is required. Brains are otherwise engaged.

8. Ages until those big picture changes in relation to EU environmental and competition law – but discussion, debate and speculation on all that will be a continung distraction.

Simon Ricketts 24.6.16

Personal views, et cetera