Planning, Brexit

In all the Brexit noise, like me you may have missed that a draft Bill of Parliament is shortly to be published by DEFRA that will have direct relevance for English planners and planning lawyers.

The European Union (Withdrawal) Act 2018 was enacted on 26 June 2018. As a result of amendments to the Bill introduced in the House of Lords and substantially accepted when the Bill returned to the Commons, section 16 of the Act seeks to secure that “environmental principles” are maintained once we leave the EU and we no longer have the monitoring and enforcement functions currently being carried out by the European Commission and European Court of Justice. It provides as follows:

Maintenance of environmental principles etc.

(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—

(a)  a set of environmental principles,

(b)  a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,

(c)  a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),

(d)  provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and

(e)  such other provisions as the Secretary of State considers appropriate

(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—

(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.”

This was not a big concession for the Government to make. In January 2017 the Commons Environmental Audit Committee recommended that the Government introduce an Environmental Protection Act to ensure that environmental enforcement and governance mechanisms were not lost after leaving the European Union.

The Government committed to consulting “early in 2018” on “establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union” in DEFRA’s 25 Year Environment Plan (11 January 2018)

In England DEFRA on 10 May 2018 started a consultation process, Environmental Principles and Governance after EU Exit, which closed on 2 August 2018. The consultation paper indicates that the proposed Environmental Principles and Governance Bill will be published in draft in “Autumn 2018“, although as a result of section 16 the absolute statutory deadline for publication of the draft is 26 December.

The Environmental Principles and Governance Bill will need to provide for:

⁃ the formulation of a set of environmental principles to be adhered to; and

⁃ the establishment of an independent body to enforce environmental law.

The DEFRA consultation paper does not go into much detail. It sets out the following basic position:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill.” (paragraph 26)

The consultation paper invites views from consultees as to whether the environmental principles (without giving any detail as to what these principles will look like) should be articulated in the Bill itself or should be left to be addressed in a subsequent statutory policy statement.

The list of environmental principles in section 16 (2) is plainly potentially relevant to every aspect of the planning system, but we need to see the detail!

The consultation paper proposes the following in relation to the proposed independent body:

Objectives for the establishment of the body are that it should:

⁃ Act as a strong, objective, impartial and well-evidenced voice for environmental protection and enhancement.

⁃ Be independent of government and capable of holding it to account.

⁃ Be established on a durable, statutory basis.

⁃ Have a clear remit, avoiding overlap with other bodies.

⁃ Have the powers, functions and resources required to deliver that remit.

⁃ Operate in a clear, proportionate and transparent way in the public interest, recognising that it is necessary to balance environmental protection against other priorities. ”

There is a specific section in the consultation paper in relation to the potential relevance of the body to the operation of the planning system:

Interaction with the planning system

133. Planning aims to ensure that the right development happens in the right place at the right time, benefiting communities and the economy. It plays a critical role in identifying what development is needed and where, what areas need to be protected or enhanced and in assessing whether proposed development is suitable.

134. The new body’s functions in relation to environmental aspects of the planning framework would need to work alongside, while ensuring clear boundaries between, the established systems in place for scrutiny of and appeal against planning decisions and development plans. The intention would be that individual decisions made under relevant planning legislation would continue to be handled under the existing processes.

135. As with other areas of environmental law, we need to consider how the body would interact with the existing planning system in relation to environmental laws that apply to planning activities, notably those concerning implementation of habitats regulations assessments, environmental impact assessments and strategic environmental assessments. This should not be a case-by-case review of decisions regarding development plans and proposals, which would be duplicative and would amount to another tier in the planning process. The body would have no role in individual planning policy decisions. The focus of the new body would therefore be on ensuring the correct application of relevant environmental law within the planning system.

136. In relation to wider planning policy, the body could have two roles. Firstly, it could be a key consultee, when certain planning policy is being considered, for example when the National Planning Policy Framework is updated. Furthermore, if the body has a wider policy role, it could provide advice on the implementation of the environmental aspects of existing planning policy and suggest future potential changes. The government would not be bound to agree to such suggestions, but should consider them alongside wider policy aims

All sorts of questions of course arise from these proposals:

– how detailed will the environmental principles be? Will the principles contain targets in the manner of DEFRA’s 25 Year Environment Plan (11 January 2018) or will they be a generic summary of the principles currently underlying EU environmental legislation along the lines of, for instance article 191 of the Treaty of the Functioning of the European Union (and if so how useful will they be?).

⁃ to the extent that the principles, such as the “principle of sustainable development” overlap with existing guidance, for instance within the NPPF, will the principles (having a statutory basis) be relevant to decision making in relation to applications and appeals and to plan making? How can we avoid unanticipated effects in that regard? Even if the intention is to retain the status quo, at least for the time being, how easy will that be?

⁃ will Parliament kick the can down the road by relegating the principles to a statutory policy statement, for how long will this be, what will be the consultation process, what voting process will be required within Parliament and what will be the mechanism for making subsequent amendments?

⁃ Surely it is for the courts to ensure “the correct application of relevant environmental law within the planning system“? Non-legally binding views from this new authority on the way in which the law is to be interpreted, beyond views already formally expressed by ministers or government bodies such as the Environment Agency, Natural England or Historic England, may just add confusion.

⁃ how can a body be created which does not overlap with existing bodies such as the Environment Agency, has a “baked in” constitutional status and which is not susceptible to lobbying and repeated judicial reviews?

⁃ whilst the proposed body is not intended to be embroiled in individual planning decisions, what safeguards will there be as to its potential influence on planning outcomes in other ways, for instance through expressing views on types of development?

⁃ to what extent will there be coordination and consistency as between England and the devolved nations?

⁃ depending on the nature of any Brexit transitional arrangements, what about the interregnum between the cessation of the European Commission and European Court of Justice’s jurisdiction and the establishment of new regimes within England, Wales, Scotland and Northern Ireland? 26 December 2018 is only the deadline for the draft Bill. How long before the Bill itself is introduced, enacted and brought into force, with this new body up and running? If we have a “deal” and a transition period, time will be tight but there may not be a gap. If there is “no deal”, there will be a period before the promised structure is in place, indeed there will be no environmental principles in place, nor an independent body to ensure compliance.

The Commons Environmental Audit Committee has been conducting the Environmental Governance Consultation Paper Inquiry seeking answers to a number of questions along these lines. Michael Gove gave evidence to the inquiry on 11 July 2018. The session is pretty unedifying with much attempted point scoring but there are some interesting exchanges.

For example, the Committee chair asked how the policy statement for the principles will be developed and scrutinised:

Michael Gove: I think that it would be developed within the Government, like any other policy statement. An analogy has been drawn—no analogy is perfect—with the National Planning Policy Framework. I would propose or suggest that the Government draw up their policy statement. Obviously it would be up to any Government Minister as to how they would set about gathering evidence, consulting, and making clear what the means might be for shaping that policy statement. Then I hope that it would be presented to the House of Commons and then debated and voted on in the House of Commons.

Chair: That is where the row is going to happen again, is it not? Across Government the rows will come back in from Treasury, from DCLG, and from Transport about how this is not going to be accepted by Ministers. Then you are going to have all the green groups and the NGOs rightly asking for much higher standards. What is the process of engaging with the public? You are saying there is a legal policy process in the Government. How long will the public have to look at this statement?

Michael Gove: That is a very fair point. One of the things is we want to have it debated and voted on in Parliament, to take the concerns you have. Were there to be a future Government Minister in another Government Department that wanted in some way to include in the policy statement things that you or I might think were not necessarily a good idea for the better protection of our environment, were that hypothetical future Minister to prevail in the shaping of the policy statement in a way that you or I might not altogether approve of, when it came to the House of Commons I think it would be the case that the NGOs that you mention and members of the public or you or I might say, “Hmm” and would seek therefore to say, “I am sorry, as you bring this forward, I do not think you will necessarily get a majority in the House of Commons for this provision, because it will be seen as weakening protection. Therefore, we in the House of Commons will not stand for it”.

In the same way as the House of Commons and the House of Lords together amended the EU (Withdrawal) Bill in a particular way, so I could see a situation in the future where the prospect of defeat in the House of Commons for a particular proposition might lead the Government to then amend their policy statement so that the hypothetical Minister in a future case who might have wanted to weaken protections would find that his or her ambitions were thwarted by the democratic majority in the House.”

The Committee had originally hoped to conclude the inquiry by DEFRA’s consultation deadline of 2 August but we still await its report. I hope that its conclusions will be able to be taken into account by DEFRA before it proceeds to publish its draft Bill, although I suspect we have a long way to go before an actual set of principles starts to emerge, alongside a clearer idea as to the nature of the authority that is to hold the ring on all of this.

In the meantime of course, existing legislation will need to be scrubbed free, via statutory instruments, of any references to EU law, to be replaced by references to the relevant EU legislation frozen at time of exit or relevant domestic legislation, but that will not be where the substantive effects are likely to be felt. Instead, watch out for the draft Bill and surrounding announcements and let’s be alert for any unintended implications for our town and country planning system.

Simon Ricketts, 18 September 2018

Personal views, et cetera