Brexit: What would it mean for planning? - DAC Beachcroft

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Brexit: What would it mean for planning?

Published On: 19 April 2016

Britain has been awash for months with debate about the potential impact should Britain vote for Brexit when the referendum finally takes place on 23 June 2016.

But what of the planning and development landscape?  While the short-term impact is likely to be negligible, things could begin to look very different in the longer term.

The EU’s main impact on the planning and development regime comes as a result of its policies on the environment and climate change.  The Lisbon Treaty requires the EU itself and its member states to pursue policies designed to protect the environment and promote energy efficiency. The aim is not just to protect natural resources and human health but also to promote a level playing field within the single market by ensuring as far as possible that the regulatory impact is felt evenly by each member state. 

These twin ambitions are given effect through a series of directives, which, in turn, have been incorporated into English and Welsh law by a series of Regulations, most notably:

  • The Environmental Assessment of Plans and Programmes Regulations 2004 (the SEA Regulations), which require public authorities - including the government - to assess and publicise the likely significant environmental effects of plans and programmes that set the framework for development consents before they are adopted;
  • The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations), which require information on the likely significant environmental impacts of major developments to be assembled, made public and taken into account before planning permission is given for the development;
  • The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations), which require an appropriate assessment to be carried out and publicly consulted on before plans and planning applications likely to have a significant effect on certain ecologically sensitive sites are approved (and which prohibit some development with significant adverse impacts, except unless there are overriding public interest arguments); and,
  • The Building Regulations 2010 and Schedule 1, Part L, which require all new buildings in the UK to meet certain construction standards as part of wider ambitions to reduce greenhouse gas emissions. 

The SEA, EIA and Habitats Regulations also give effect to the public’s Aarhus Convention right to take part in decisions that affect the environment, including requiring public authorities to actively disseminate the environmental information on plans and developments.

This regime of controls has undoubted benefits in encouraging less environmentally damaging proposals, promoting greater energy efficiency and in involving the public in those decisions. However, in pursuing those aims, it also contributes to delay and costs, which, in economically constrained times, can mean that development doesn’t move ahead.

These delays not only affect planning applications but also the public sector’s ability to quickly adapt policy to changing circumstances. For example, Eric Pickles’ decision in 2010 to abolish by order all regional spatial strategies to give effect to the Coalition Government’s commitment to “rapidly… return decision making powers on housing and planning to local councils” came unstuck because, among other reasons, the decision had not been subject to an assessment under the SEA Regulations. 

From a developer’s perspective, legal challenges to unpopular development proposals alleging breaches of the EIA regulations have become so common that local authorities and developers now start with a defensive mind-set. The resulting, leviathan environmental impact assessments can run to hundreds - and even thousands - of pages, much of which will be dedicated to showing that even the most obscure and unlikely impact has been properly considered and ruled out.  Preparing and assessing these documents is expensive and time-consuming for both developers and local authorities.

Even once planning permission is secured, the energy performance requirements in the Building Regulations impose additional constructions costs.  The Performance of Buildings Directive (2010/31/EU) requires all new homes to be constructed to 'Nearly Zero Energy Building' standards by 2021. The government originally intended to achieve this by gradually tightening the Building Regulations so that all new homes would be Zero Carbon (formerly Code level 6) by 2016. That ambition was abandoned in July 2015 in the Treasury paper entitled “Fixing the Foundations”. At the moment, it remains unclear exactly how or when the government expects to meet the Nearly Zero Energy Building standards.

While the UK remains within the EU, many EU parent directives are directly enforceable against public authorities in the UK Courts, and hence little can change. However, if the UK leaves the EU, the directives will be swiftly consigned to the dustbin and the government could amend or even abolish the various regulations. Changing those regulations would also free the UK courts to move on from earlier precedent rulings that gave effect to the European Court of Justice’s interpretation of the various directives. 

If the immediate economic outlook during and after any Brexit is uncertain, a bonfire of the SEA, EIA and Habitats Regulations and of parts of the Building Regulations will be attractive. Nonetheless, it is unlikely.

Although the regime is not beloved of policy-makers nor developers alike, it does ensure that environmental considerations are firmly in view when planning decisions are made and that the public can have its say. As such, it is bound to enjoy popular support and it will take a brave government to make an immediate and clean break.

The more likely approach to change is likely to be a gradual shift. For instance, we may see further tinkering with the thresholds above which regulations start to apply and perhaps further exemptions for SME developers.  However, even an incremental approach of that sort carried out over a number of years could still leave us with a planning system that looks very different from today. 

The real challenge, should the electorate vote for Brexit this summer, would be to ensure the benefits of the current regime - environmental protection, public engagement and the like - are preserved while simultaneously paring back any unnecessary elements. A post-Brexit government will need to be very careful not to throw the baby out with the bathwater.