Brexit: The impact on Environmental Law in the Planning Process

This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.

The decision to leave the EU will inevitably have far reaching legal consequences which still remain uncertain at this time, but what effect will Brexit have on Environmental Impact Assessment regulation?

Environmental Impact Assessment (EIA) is a means of drawing together an assessment of the likely significant environmental effects arising from a proposed development. Developers and local planning authorities are regularly engaged in information gathering exercises which enable local authorities to understand the environmental effects of a development before deciding whether or not a particular development should go ahead. With Brexit upon us, should developers and local authorities be looking to the horizon? Are fears that Brexit will have a negative impact on the environment justified?

Environmental Impact Assessment

  • The process of EIA in the context of town and country planning in England is governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the 2017 Regulations).
  • These regulations apply to development which is given planning permission under Part III of the Town and Country Planning Act 1990 applying the EU directive usually referred to as the ‘EIA Directive’ to the planning system in England.

The European Withdrawal Bill

  • The European Withdrawal Bill ('the Bill') as drafted proposes the repeal of the European Communities Act 1972 (ECA) which provides a delegated power for the implementation of EU obligations e.g. the implementation of the EIA Directive through secondary legislation. Final amendments were made to the Bill during the third reading in the House of Lords on 16 May 2018. The Bill has now been returned to the Commons for consideration of Lords amendments (at the time of writing the date is yet to be announced).
  • Clause 2 of the Bill confirms that EU-derived domestic legislation, as it has effect in domestic law, will continue to have effect in domestic law on and after exit day. This includes EIA and Strategic Environmental Assessment (SEA) regulations and well as hundreds of other EIA/ SEA regulations that govern specific projects like electricity works, offshore petroleum production, water resources etc.
  • The intention is to preserve laws which would otherwise lapse on repeal of the ECA to allow parliament to look piece by piece at all retained EU law and in time decide which bits it might wish to change.
  • In addition, there will be a 'transition period' (from 'exit day' in March 2019 to late December 2020) in which time EU law will, according to the EU's draft withdrawal treaty, continue to operate as normal.

EU Supremacy after Brexit?

  • Clause 5(2) of the Bill states:

“the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day

  • The essence of the approach in the Bill is that the principle of the supremacy of EU law does not apply to any enactment or rule of law made on or after exit day, but that it is still applicable to legislation made before exit day, with the consequence that pre-exit EU law will take precedence over pre-exit domestic law.
  • However, as currently drafted there is a fundamental flaw at the heart of the Bill as EU law cannot benefit from the 'supremacy principle' when we leave the EU. The supremacy of EU law is a European legal concept rather than a domestic one, and perpetuating it after exit day does not fit comfortably with existing constitutional and legal principles - how this academic point will eventually be dealt with remains to be seen.

Impact on EIA

  • At present under the Marleasing Principle of "indirect effect" courts are required to read domestic legislation in light of the wording and purpose of the EU directive in order to achieve the intended result of the EU directive.
  • In the event EIA Regulations are replaced following exit day, a court should perhaps decline to apply the Marleasing principle to their interpretation. Potentially therefore from 2021, the UK can amend the EIA process in any way it wishes. But that would depend on a complete break from the EU legal system which in turn will depend on the terms of withdrawal negotiations in the negotiation period.
  • Further, a Court may still in the future be allowed to read the domestic regulations made before exit day which fail to properly give effect to the EIA Directive as its template at exit day as far as possible to do so in a manner that is compatible with that directive.

In addition to the ongoing legislative considerations relating to the Bill, consultations are underway on measures intended to provide the "green Brexit" government ministers have promised. Environment Secretary Michael Gove has set high expectations with promises of a 'world-leading' environmental watchdog and enhanced environmental standards. Notwithstanding that doubts have already been cast as to the new watchdog's powers, this should ease the minds of those with concerns over whether Brexit will be a 'green' one.

In conclusion, it doesn't look like we're going to circumvent EIA that easily and it will largely be 'business as usual' for developers and local planning authorities who regularly engage in EIA. In the current climate government guidance on the topic would be welcomed but it certainly seems that if the above principles still apply following Brexit, it will still very much be at the forefront of environmental regulation.

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