What does Brexit mean for planning and environmental law?

Scotland’s planning system decides what gets built and where, and is of fundamental importance to society. EU law and policy exerts a powerful influence on Scottish planning and environmental law and policy, which guides this decision-making. It does so through directives requiring implementation in member states, regulations which are directly applicable, guidance, and decisions of the Court of Justice.

Many consider that the EU has broadly raised the environmental standards of the UK across many important areas involving human health and the environment.

The overarching aim of the planning system under the Scottish Government’s central policy (Scottish Planning Policy 2014) is to achieve sustainable economic growth, with a presumption in favour of sustainable development that owes much to EU influence. The focus on renewable energy development, and on addressing climate change, are good examples of this.

The Scottish Parliament has devolved powers in planning and environmental matters, but it is environmental protection that has experienced the greatest EU influence. This provides an important counterbalance to ensure that potentially damaging effects of new development are assessed, understood and properly mitigated. It may mean that development proposals require to be amended, or cannot proceed in a particular location.

Embedded rules

The majority of environmental protection law affecting new development arises from the EU, notably the Environmental Impact Assessment Directive 2011/92/EU which requires that qualifying development (usually but not limited to large scale development) is assessed in terms of its potential environmental impacts, requiring the developer to prepare an environmental statement to accompany a planning or related application. The directive is given effect by the 2011 EIA Regulations. Compliance is a time consuming and costly process and is often the focus for legal challenges by objectors, and the process can therefore be unpopular with developers. Interestingly, a new and strengthened EIA Directive with further requirements, including the need for ongoing monitoring, is due to be transposed into domestic law in 2017. For development proposals that may not be consented until 2017 it would be prudent for assessment of environmental impacts to be future proofed against the anticipated changes in the new directive.

Other relevant directives include the Birds Directive 2009/147 and the Habitats Directive 92/43, which are transposed into domestic law through the Habitats Regulations. These place a high measure of protection on certain species and their habitats, requiring what is called “habitat regulation appraisal” for certain plans and projects that affect protected sites (terrestrial and marine) and protected species. The current judicial review against Scottish ministers’ decisions to consent four major offshore wind farms in the North Sea is based on the Birds Directive.

In addition to the above, a number of other directives have been transposed (through regulations) on important areas such as water quality (Water Framework Directive 2000/60), air quality (Ambient Air Quality Directive 2008/50), waste (Waste Framework Directive 2008/98), and strategic environmental assessment (Environmental Assessment for certain Plans and Programmes Directive 2001/42).

Scenarios

The impact of Brexit on the law depends on how Brexit is implemented and what type of new relationship the UK would have with the EU. No doubt environmental law derived from EU law will require to be carefully reviewed, and consideration given as to whether it is kept in whole or in part or repealed.

If the UK retained access to the single market through being part of the European Economic Area (similarly to Norway), most of the EU laws and policy (with the notable exception of the Habitats and Birds Directives, which are specifically excluded from the EEA Agreement) would continue to apply – although the UK would have a limited power to influence them.

In the event of a total Brexit (an exit from the EU), the UK would cease to be bound by the obligations set out in the EU laws, although the UK and Scottish Governments would in my view wish to avoid a legislative vacuum caused by the repeal of EU laws before new domestic laws are in place. Interim measures might well be put in place to ensure that domestic legislation deriving from EU law is preserved at least in the meantime, while alternatives are explored. The UK would also continue to comply with other international agreements/treaties covering environmental protection.

The concern for many is that following Brexit, pressure will be put on the UK and Scottish Governments to reduce levels of environmental protection and place additional weight on economic development.

No article would be complete without mentioning two important issues that may impact on all of this. The first is that Brexit is ultimately not given effect; and if it is, there is the emerging possibility of a second referendum for Scotland’s independence from the UK on the back of Scotland’s vote to remain within the EU.