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.
One consequence of the Brexit vote will be how the various elements of the planning process may be affected.
Many aspects of EU legislation and directives are either directly applied or are transposed into UK law by means of statutory instruments. At present there is a requirement that those transposed regulations mirror the contents of the relevant directive.
In the context of planning, much of the current regulatory framework that we operate within is as a direct result of European directives, for example the requirement for an Environmental Impact Assessment and the process by which it is determined whether a planning application requires an Environmental Statement to accompany it. This is often a significant expense for schemes that are just over the current thresholds requiring such environmental statements. As part of the exit arrangements it may be that the requirements are amended and relaxed, to include changes of threshold, and requirements which may reduce the burden on those borderline schemes that may not currently proceed due to the burden of supplying an environmental statement.
Similarly in the process of making and adopting local plans there is a need to provide Strategic Environmental Assessments, to consider the environmental impacts of such a proposal. These requirements are transposed from a European directive. They have the effect of slowing a local plan process and then preventing the establishment of a robust plan led development system against which development can be undertaken and progressed. The negotiation of an exit may enable the government to re-assess how the regulations apply and expedite the local plan making process.
There are other elements of the planning regime which have been transposed such as the Habitats Directive and legislation to protect designated species from development, or to ensure that their interests are protected as part of the development process. In this regards these regulations have the potential to de-rail developments by the discovery of, for example, crested newts!
However, in reality this area is one area where it is unlikely that there will be a significant change to these important provisions.
What is clear is that the negotiations on our exit from the EU could have implications for the planning process. However, at this time it is impossible to accurately predict the future face of our planning legislation. Therefore we advise all those who are entering into development contracts and agreements (s106 Agreements, Options, Conditional Contracts etc.) to include Brexit related review mechanisms within them. This will enable a flexible response to be adopted to whatever changes may lie ahead.