The Brexit Planning Landscape - DAC Beachcroft

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The Brexit Planning Landscape

Published On: 8 July 2016

While the short-term impact on planning will be negligible, the longer term planning and development landscape could look very different.

The EU’s main impact on planning and development is through its policies on the environment and climate change.  The Lisbon Treaty requires the EU and member states to pursue policies 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 obviously:

  • 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 which 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 which are 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);
  • 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 builds in delay and costs which in economically constrained times, can mean that development doesn’t move ahead.

The delays don’t simply 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 amongst other reasons, because 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 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  “Fixing the Foundations”. At the moment it is unclear how or when the government expects to meet the Nearly Zero Energy Building standards.

The post Brexit picture is not clear. The government could abolish the various regulations as a quick route to cutting development costs in an uncertain economic environment.  Changing the regulations would also free the UK courts to move on from earlier precedent rulings which gave effect to the European Court of Justice’s interpretation of the various directives.  However change is more likely to be gradual and incremental rather than revolutionary.

Although the regime is not loved by either policy makers or developers, it does ensure that environmental considerations are firmly in view when planning decisions are made and that the public can have its say.  Initial change may take the form of tinkering with the thresholds above which the regulations start to apply and perhaps further exemptions for SME developers.  However, even an incremental approach carried out over a number of years could still eventually result in a planning system that looks very different from today’s. 

The real challenge post Brexit, is to make sure that the benefits of the current regime in terms of environmental protection and public engagement are preserved, while paring away at the unnecessary aspects. A post-Brexit government will need to be careful not to throw the baby out with the bathwater.

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