The Office For Environmental Protection

And through it all the Office for Environmental Protection

A lot of love and affection

Whether I’m right or wrong..”

The Secretary of the Environment, Food and Rural Affairs, Michael Gove, presented the draft Environment (Principles and Governance) Bill to Parliament on 19 December 2018.

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

Definitions

The “environment” can often have a broad meaning.

For instance in the Environmental Impact Assessment Directive the following factors need to be addressed in environmental impact assessment:

“(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.

Simon Ricketts, 22 December 2018

Personal views, et cetera

Sajid Javid: Agent Of Change?

Sajid Javid’s statement Strengthened planning rules to protect music venues and their neighbours on 18 January 2018, confirming that the “agent of change” principle would be included in the revised NPPF, was widely supported. 
But this was hardly news was it? Go back to the February 2017 housing white paper:

Noise and other impacts on new developments 

A.140 The National Planning Policy Framework, supported by planning guidance, already incorporates elements of the ‘agent of change’ principle (this provides that the person or business responsible for the change should be responsible for managing the impact of that change) in relation to noise, by being clear that existing businesses wanting to grow should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established. 

A.141 We propose to amend the Framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations, such as churches, community pubs, music venues and sports clubs, when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. This will help mitigate the risk of restrictions or possible closure of existing businesses and other organisations due to noise and other complaints from occupiers of new developments.

The latest statement takes this further forward not one jot. I was blogging about the agent of change principle back in October 2016 in my post Noise Annoys.

The prod for the 18 January announcement was the introduction into the House of Commons on 10 January 2018 of a private members’ bill, the Planning (Agent of Change) Bill, by Labour MP John Spellar. Following the debate on 10 January, the Bill (which has not actually been published at this stage, as is often the case with private members’ bills of this nature which are largely intended just intended to draw attention to an issue) was due to receive a second reading on 19 January but this has now been postponed until 16 March. Presumably the intention of the bill was simply to keep the Government focused on what it had already indicated to do. If this is how politicians have to spend their time but it all seems odd to this outsider. 
The agent of change concept really now does have momentum, with a strong campaign run by the Music Venue Trust and supported by the Local Government Association. It is frustrating that even such an apparently simple change to policy (oversold in Javid’s statement as a new “rule”) takes so long to introduce. 
The Welsh Assembly was able to move rather faster, introducing an equivalent policy change by its letter letter Supporting the Night Time Economy and the Agent of Change Principle (26 May 2017):
Existing policy in Planning Policy Wales already says new uses should not be introduced into an area without considering the nature of existing uses. Under the agent of change principle, if new developments or uses are to be introduced near a pre-existing business, such as a live music venue, it is the responsibility of the developer to ensure solutions to address and mitigate noise are put forward as part of proposals and are capable of being implemented. 

PPW also encourages local planning authorities to consider the compatibility of uses in areas and afford appropriate protection where they consider it necessary, as part of their development plans. The revisions to PPW will add to this and allow for the designation of areas of cultural significance for music through development plans.”



The letter advises Welsh planning authorities that they “should begin to apply this principle, where it is a relevant consideration, with immediate effect.” Javid could have taken this approach with his 18 January announcement and it is a disappointment that he did not.  
The Mayor of London has also of course introduced a policy into the draft London plan. 



There has also been coverage this week of the supposed news of further slippage in the publication of the draft NPPF, which would cause further delay to the final document. Senior MCHLG servant Melanie Dawes was reported in Planning magazine as saying to the CLG Commons Select Committee that it would be “ready for consultation in the next few months – I hope just before Easter or thereabouts”, meaning that we should assume it may be at the end of March (“or thereabouts”!). But again, this wasn’t news, given that Government chief planner Steve Quartermain’s 21 December 2017 letter to local authorities had promised the draft “early” in 2018. The letter states that the final version of the revised NPPF would be “before the end of the summer“. In my view this is careful wording: we should not necessarily assume that we will see it this side of the Parliamentary recess (which starts on 20 July). Which of course has an immediate influence on those authorities who had either been rushing to submit their local plans by the end of March 2018 or waiting until after that deadline, depending on their tactical judgment as to how they would be affected by the proposed standardised methodology for assessing housing needs – that end of March deadline is now a late summer deadline. 

Honestly, it would be enough to make one scream, if it wasn’t for the neighbours. 
Simon Ricketts, 19.1.18
Personal views, et cetera

Planning Law In 2018: This Is Not A Love Song

This is not a proper simonicity blog post but a quick review of the year that was 2017, followed by a comment-free look at 2018, which promises, conversely, to be the year of the review.
2017: review of the year

To use the popularity or otherwise of simonicity blog posts during the year as a proxy, these were some of the main issues that engaged us:
NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying? (1,588 views) (10 May 2017)
20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG (731 views) (20 August 2017)
Viability Assessment Is Not A Loophole, It’s A Noose (707 views) (4 November 2017)
Housing Needs: Assessed Or Assumed? (694 views) (20 September 2017)
Five Problems With Neighbourhood Plans (565 views) (19 February 2017)
Green Belt Policy: Will It Change?  (520 views) (11 November 2017)
Money For Nothing? CPO Compensation Reform, Land Value Capture (509 views) (20 May 2017)
Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?) (492 views) (8 July 2017)
Slow Train Coming: Strategic Rail Freight Interchanges In The South East (442 views) (6 May 2017)
The New EIA Regulations (357 views) (29 April 2017)
2018: year of the review?
The policy agenda for the coming year includes:
* the Government’s green paper on social housing, announced by Sajid Javid in September 2017, which he described as a “wide-ranging, top-to-bottom review of the issues facing the sector, […] the most substantial report of its kind for a generation“. 
 • recommendations from a review panel, chaired by Sir Oliver Letwin “to explain the significant gap between housing completions and the amount of land allocated or permissioned, and make recommendations for closing it”. An interim report is expected for the Government’s Spring statement in 2018 and full report by the time of the Autumn budget in 2018. 

 • the Labour party’s review of the planning system, “People and Planning”, announced by Roberta Blackman-Woods at its 2017 party conference.

 • Nick Raynsford’s review for the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” A report is to be formally presented at all major party conferences in autumn 2018.

 • a revised version of the National Planning Policy Framework for consultation in the Spring of 2018 with a final version in the Summer.

 • a consultation process in Spring 2018 on detailed proposals to reform the Community Infrastructure Levy.

* further implementation of existing legislation as well as an amendment to the General Permitted Development Order to give deemed permission (subject to criteria and limitations yet to be spelt out) to the demolition of existing commercial buildings and their replacement with residential development.
Away from England:
* The Law Commission is consulting until 1 March 2018 on proposals to simplify and consolidate planning law in Wales at the request of the Welsh Government, which is drafting a planning code to consolidate existing planning legislation. 
* The Planning (Scotland) Bill was introduced into the Scottish Parliament on 4 December 2017, following an independent review of the system. As well as progress in 2018 on the Bill, which proposes wide-ranging changes to the planning process in Scotland, we can also expect an amended version of Scotland’s National Planning Framework.

All of this is going to take some unpacking.
Happy new year and thanks for continuing to read, comment, share and follow. Let’s continue to join the dots and call out the spin within this increasingly diffuse policy area. Not a love song – more of a wail…
Simon Ricketts, 30 December 2017
Personal views, et cetera

Another Review

“You’re joking, not another one?” (Brenda, April 2017)
This was my reaction too. But let’s try to suspend our cynicism. 
The Raynsford review of planning has been instigated by the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” Evidence will be gathered over 18 months with a report to be formally presented at all major party conferences in autumn 2018.
Background papers have been published by the TCPA:
* Background Paper 1: Creating a blueprint for a new planning system in England 
* Background Paper 2: The rise and fall of town planning 

* Provocation Paper 1: Do we have a plan-led system? 

* Provocation Paper 2: People and planning 

The papers are good and if anyone is going to review the planning system then TCPA president and ex Labour housing and planning minister Nick Raynsford is the right person, backed by a heavyweight team (albeit one that is light on developer input). 
But…
Here we are in a becalmed area of policy making, away from the high winds and storms of Brexit, with so many unfinished changes to our current system (a July 2017 House of Commons Library research briefing on the Government’s Planning Reform Proposals counts 22 of them). There have been too many ideas but not enough sieving. There’s an implementation logjam. 
There is little governmental appetite or capacity I’m sure for further significant reform in this Parliament. Putting it charitably, Alok Sharma has hit the ground walking, with little other than disparate funding announcements (eg in August announcements of £6.2m funding for Didcot garden town and £65m funding for build to rent at Wembley Park) and trumpeting of at best inconclusive home start statistics as to new homes starts.
Furthermore, what role does a review have where it has not been called for or endorsed from government, and is one which is led by a former Labour politician, however experienced in the issues? The planning system is a machine, big cogs, little cogs, to deliver the government of the day’s social, economic and environmental objectives. Unless the review is just to be about process, what objectives are to be assumed in framing recommendations? Where is the machine to be pointed? Or is this about establishing a 2020 vision come the next election, but by which time we will be in another place, politically, economically? The past is a different country, but so is the future. 
Too cynical? Perhaps this vulnerable, overwhelmed government, focusing its attention on the impossibility of Brexit, will be only too keen to accept non-partisan thinking. Strike that. Of course it won’t. It pays lip service at best to the recommendations of the Commons CLG Select Committee. It stalls implementation of previously commissioned reports, for example in relation to CIL. I’m sure that the recommendations of the Raynsford report will be wise and wide-ranging. But it will land with a silent thud. 
Has there been any governmental activity that has been subject to quite so many reviews as has the planning system? Perhaps this is inevitable given that planning is a wholly artificial policy construct, a political intervention, but it’s quite a roll of honour:
– Barlow Commission report on the Distribution of the Industrial Population (1940) 
– Utthwatt report on Compensation and Betterment (1941)
– Scott report on Land Utilisation in Rural Areas. (1942)
– Beveridge report on Social Insurance and Allied Services (1942)
– Reith report on New Towns (1946)
– Planning Advisory Group report on the Future Of Development Plans (1965)
– Skeffington report on Public Participation in Planning’ (1969)
– Dobry review of the Development Control System (1975)
– Those influential white papers Lifting The Burden (1985) and Building Businesses Not Barriers (1986)

– Lord Rogers report Towards An Urban Renaissance (1999)
– The green paper Planning: Delivering A Fundamental Change (2001), together with four daughter papers published at the same time. 
– Barker reviews of Housing Supply (2004) and of Land Use Planning (2006)
– Eddington review of Transport (2006)
– Lyons Inquiry into Place Shaping (2007)
– White Paper, Planning For A Sustainable Future (2007)
– Killian Pretty Review: Planning applications: A faster and more responsive system (2008)

– Penfold review of non-planning consents
– The Conservative party’s Open Source Planning manifesto document (2010)
– Lord Heseltine report No Stone Unturned: In Pursuit Of Growth (2012)
Local Plans Expert Group (2016)
– Liz Peace’s CIL review (2017)

Those are just some of the reviews that have been undertaken or sponsored by government, to which we can add work by think tanks and campaign organisations such as the TCPA. There are almost too many to catalogue but how about, for instance, the work of: 
– Policy Exchange eg A Right to Build: Local homes for local people (2016)

– CPRE eg Getting Houses Built: How to Accelerate the Delivery of New Housing (2016)

– the Labour party sponsored Lyons Housing Review Mobilising across the nation to build the homes our children need (2014, updated in 2016)

– Shelter eg Solutions for the housing shortage: How to build the 250,000 homes we need each year (2013)

– Institute of Economic Affairs eg Abundance of land, shortage of housing  ( 2012)

– IPPR eg We must fix it: Delivering reform of the building sector to meet the UK’s housing and economic challenges  (2011)

Lastly, we need to keep an eye on what we can learn from the changes currently underway in Scotland. An independent review of the Scottish planning system Empowering Planning To Create Great Places that concluded in May 2016 has led to the June 2017 Places, People and Planning consultation paper. 

Hats off as always to the TCPA for not giving up, sitting on the sidelines or focusing on the here and now. They deserve, and will need, our support because the review’s outcome will not be a soundbite-sized, easy-to-swallow happy pill but will look worryingly like the work of…

experts. 

Simon Ricketts, 28 August 2017
Personal view, et cetera

What The EU (Withdrawal) Bill Would Mean For (eg) EIA

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations. 
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU. 
Clause 2(1) of the Bill provides:
“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

So the Regulations will remain in force unchanged post exit day.   
For the avoidance of doubt clause 5(1) provides:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out. 
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:
“A court or tribunal

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and 

(b)  cannot refer any matter to the European Court on or after exit day.

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— 

(a)  any failure of retained EU law to operate effectively, or 


(b)  any other deficiency in retained EU law, 


arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book.

Clause 7(6) contains some protections:
But regulations under this section may not— 

(a)  impose or increase taxation,

(b)  make retrospective provision, 


(c)  create a relevant criminal offence, 


(d)  be made to implement the withdrawal agreement, 


(e)  amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or 


(f)  amend or repeal the Northern Ireland Act 1998 (unless the regulations
 are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “


The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from 
the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:
“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical. 

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14). 
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation. 

Simon Ricketts, 13.7.17

Personal views, et cetera

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

Parliament, Purdah, Planning

The pre- general election “purdah” period starts at midnight tonight (21 April). What this means is set in Cabinet Office guidance published yesterday, 20 April.
The guidance says:

“During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money

So don’t hold your breath for any decision letters to be issued. 
In relation to current consultation processes, the guidance says:

“If a consultation is on-going at the time this guidance comes into effect, it should continue as normal. However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process. 


As these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. That can be done, for example, by: 


– prolonging the consultation period; and


– putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister).

Some consultations, for instance those aimed solely at professional groups, and that carry no publicity will not have the impact of those where a very public and wide-ranging consultation is required. Departments need, therefore, to take into account the circumstances of each consultation.”

There are currently six DCLG consultation processes which are still open:

* Review of park homes legislation: call for evidence

* Running free: consultation on preserving the free use of public parks

* Banning letting agent fees paid by tenants

* 100% business rates retention: further consultation on the design of the reformed system

* Fixing our broken housing market: consultation

* Planning and affordable housing for Build to Rent

the last two of course being particularly important for us in the housing and planning sector. 

The Department for Transport is currently consulting on its draft Airports National Policy Statement in relation to the expansion of Heathrow and on reforming policy on the design and use of UK airspace.

Surely these consultation processes will all now be extended. Can any of them be said to be “aimed solely at professional groups”?
The Government faces an interesting dilemma in relation to its awaited consultation draft air quality plan. Garnham J had ordered on 21 November 2016 that the draft be published by 24 April 2017 following previous deadline breaches summarised in my 4.11.16 blog post. The announcement of the election and consequent purdah period does not automatically extend that deadline. Will we see a draft by the deadline or will ClientEarth be back before the court?
Notwithstanding purdah, Parliament will continue to sit until 2 May 2017. The outstanding Bills are:
• Bus Services Bill

• Children and Social Work Bill 

• Digital Economy Bill 

• Health Services Supplies Bill

• Higher Education and Research Bill 

• National Citizen Service Bill

• Pension Schemes Bill

• Technical and Further Education Bill

and of course the Neighbourhood Planning Bill, which is at its final stages, with final consideration by the House of Lords on 25 April 2017 of amendments made by the Commons. Whilst technically there is therefore the time available before Parliament dissolves, the BBC website  has an interesting analysis of the practical constraints that there will be on Parliamentary time during this final period. My understanding is that public Bills cannot be held over and so the Bill would fall. 
Finally, as we wait for the parties’ manifestos and various pressure groups compose their letters to Santa, this is a collection of some of the commitments which some Town Legal colleagues would personally like to see (tongue in cheek – what votes in many of these one wonders?). We will be jotting up the scores once the manifestos are published but a more than a 10% convergence would be doing pretty well I suspect…
1. Revised NPPF as previously signalled, but with consultation on final wording.

2. Real sanctions for local planning authorities which continue to delay in preparing plans or which do not plan adequately to meet housing requirements. Statutory duty to make local plans every 10 years. 

3. Review of green belt boundaries in the south east should be obligatory at least every 20 years. Where there are no green belt boundaries fixed because there are no local plans in place , the Secretary of State should appoint PINS to lead a plan making exercise at the expense of the defaulting council with step in rights if the Council wants to come back into the fold.

4. Review of effectiveness of Localism Act 2011 procedures, including neighbourhood plan making.

5. No weakening of environmental protections via Great Repeal Bill.

6. Urgent conclusion to CIL review, with short-term remedial measures, including greater flexibility for local planning authorities and developers in relation to strategic sites.

7. Enabling urban extensions and new settlements of true scale (eg 10,000 to 15,000 homes plus associated infrastructure and development) to proceed by way of NSIP.

8. Introduction of duty to cooperate to apply as between the London Mayor and local planning authorities.

9. Reform of rights to light law to reflect modern realities.

10. Greater flexibility for local authorities to dispose of land for less than best consideration.

11. Require better coordinated forward planning with statutory undertakers and infrastructure providers.

12. General commitment to consultation and piloting prior to legislative changes in relation to planning.

13. Increased resourcing in relation to the planning system so as to achieve better quality, more consistent, more timely and more efficient outcomes.

14. High speed Broadband and electric car charging should be a standard requirement.

15. Clarity on approach to viability and review mechanisms.

16. A more stable system with no more changes for the next two years at least (save for these ones!)

Back to the day job…

Simon Ricketts 21 April 2017

Personal views, et cetera