Potential Impacts of Brexit on Planning & Environmental Law and Practice

As the EU Referendum fast approaches, the Brexit debate is gathering pace.

Much of the planning and environmental legislation in the UK is derived from European law, and so a Brexit vote could result in significant changes to existing law and practice. In addition, planning and environmental matters are largely devolved to the Scottish Parliament, meaning the consequences of a Brexit could be very different in Scotland compared to the rest of the UK.

Environmental Assessments

An area where our clients most often feel the effect of European law is when they are required to undertaken an assessment of the potential environmental impacts of their proposed development through an Environmental Impact Assessment (EIA). Planning authorities are also required to undertake Strategic Environmental Assessments (SEAs) as part of the development plan process.

There is also domestic legislation derived from EU Directives such as the Habitats Directive, Birds Directive, Ambient Air Quality Directive, Water Quality Directive and the Waste Framework Directive.

Environmental assessments can be an expensive exercise, often adding months to a development programme, and £100,000s to the budget. They have also been a frequent ground of legal challenge by opponents to development. For example, despite securing the necessary consents in 2014, four of Scotland’s largest offshore wind farms have been placed on hold as a consequence of a legal challenge brought by the RSPB based on the EU Birds Directive.

One supporter of Brexit, George Eustice MP, Minister for Farming, was quoted as saying “... the directives’ framework is so rigid that it is spirit-crushing. If we had more flexibility, we would focus our scientists’ energies on coming up with new, interesting ways to protect the environment...”.

Those who support remaining in the EU, have pointed out that environmental improvements in areas such as acid rain, air quality, and water quality have been achieved through membership.

It is certainly the case that as in other areas, outside the EU, future Governments would have more freedom to amend and possibly revoke domestic legislation dealing with these environmental issues.

However, it is also the case that there is support in both domestic legislation and policy to ensure new development does not cause an unacceptable impact on the environment, for example, Scottish Planning Policy’s (SPP) central theme is the delivery of sustainable development. It seems unlikely that even if the UK were to leave the EU, there would be a significant change in this existing policy position.

The UK is also party to non-EU treaties and conventions such as the Aarhus Convention, which play a significant role in domestic law, and would remain irrespective of whether the UK was a member of the EU.

Exit Uncertainty

The UK’s exit from the EU is expected to take up to 2 years. It is unlikely existing environmental legislation would be significantly amended or repealed during that time.  As in other areas, there would be a high degree of uncertainty during this period. Would developers undertake time consuming and expensive EIA if ultimately it was not needed?

There is also the potential for significant divergence between the UK and Scottish planning systems post exit.

Infrastructure Planning

There are fears that infrastructure planning would be negatively affected by a Brexit. Current EU investment in HS2 and Crossrail would be jeopardised, and the UK could lose access to the European Regional Development Fund. There is a suggestion UK companies may be prevented from bidding on EU projects.

On the other hand, the EU might continue to fund infrastructure works in the UK (as it does in Switzerland) due to it being on a direct transport route to Ireland. Any potential savings from Brexit could be used to fund a UK development fund.

Conclusion

EU legislation has been the driver behind much of what is now UK and Scottish environmental law. A lot of this has not been popular in the development industry, with a sense it places too much emphasis on procedure, and a “box tick” approach. However, it is also the case that the protection of the environment and the delivery of sustainable development is a priority at Scottish and UK levels, and that is likely to remain irrespective of the result of the referendum on 23 June.

The Scottish Government could also respond very differently to the UK Government on this issue, leading to different environmental laws north and south of the Border.

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