Environmental and planning challenges

Matthew Germain and Neil Bromwich consider the likely implications on planning and environmental law should the UK withdraw from the EU.

Given the current uncertainty around how and when the UK will leave the European Union, it is difficult to definitively set out the ways in which UK environmental and planning law might change as a result of Brexit. Nevertheless, it is possible to set out some of the options open to the government and list current measures that have already been implemented in preparation for the UK's departure from the EU.

It is worth highlighting from the outset the significant role of the EU in influencing UK environmental policy. Considering that the EU has been the primary driver behind around 80% of the UK's environmental legislation (relating to matters such as chemical pollution, plant emissions, pesticides, landfill, recycling and climate change), there are understandably concerns about the extent to which UK environmental legislation could regress without EU influence and enforcement. Such fears are not wholly unsubstantiated, particularly with regards to the enforcement of legislation. However, at least in the foreseeable future, changes to the UK's environmental legislation are likely to be minimal.

What will happen in the short term?

The UK's exit from the EU will not trigger any fundamental changes to the UK's suite of EU-derived legislation in the short term. This is because the European Union (Withdrawal) Act 2018, which governs what will happen to EU law in the UK after it leaves the EU, ensures continuity of regulation after Brexit (in whatever form) via the concept of retained EU law.

Under the Withdrawal Act, the European Communities Act 1972 (which makes directly applicable EU law enforceable in the UK and provides the basis for domestic implementation of directives) will be repealed at the point that the UK leaves the EU (Exit Day).

In order to fill the void left by the repeal of the 1972 Act, the Withdrawal Act provides for all EU law that applies in the UK just prior to Exit Day to be transposed onto the UK statue books as 'retained EU law'. Regulations that apply the day before Exit Day will therefore be the same as those that apply after Exit Day. New EU law that hasn't yet come into effect (in the case of EU regulations) or hasn't been directly implemented in the UK (in the case of directives) before Exit Day will not apply in the UK.

This is subject to any amendments made by the government to retained EU law under its powers to correct operational deficiencies that might otherwise arise when EU law is effectively copied and pasted into the UK statute books (for example, amending references to the 'Commission' and 'other member states').

Under the Withdrawal Act, the process of converting EU and EU-derived law into retained EU law will occur on Exit Day, whenever that date might occur. In the event that Theresa May's withdrawal agreement, which has been approved by the EU but rejected by the House of Commons (the Withdrawal Agreement), is approved by Parliament, there would be a transition period following the UK's formal exit from the EU, during which time the UK will be outside of the EU but subject to all EU rules as if it was still a member. Retained EU law would then kick in at the end of the transition period (31 December 2020, although this can be extended for up to two years).

The legislative status quo will therefore be maintained at the point that the UK has left the EU and any transition period has ended and will remain so unless and until the government effects any post-Brexit changes.

What about international law? Environmental regulations that will not be affected by Brexit include the various international conventions and treaties to which the UK is a signatory in its own right, separate from its status as an EU member state. Examples include: The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, The Rotterdam Convention (pertaining to hazardous chemicals and pesticides in international trade) and The Convention on Long-Range Trarisboundary Air Pollution. Given that the UK is already a party to such agreements independently of the EU, the government will remain legally bound to uphold its obligations and commitments under these agreements post Brexit.

There are, however, a number of international treaties to which the UK is a signatory by virtue of its membership of the EU. The directly effective elements of such treaties (where provisions are sufficiently clear, precise and unconditional so as to confer rights directly on individuals) foam part of retained EU law and will therefore form part of UK law after Brexit. Other aspects of such treaties will not however be included within retained EU law and will need to be ratified by the UK government if they are to have the same binding effect as was the case pre-Brexit.

The impact of Brexit on the planning regime

The planning regime in England and Wales is predominately controlled by the Town and Country Planning Act 1990 and the statutory regime that pervades the 1990 Act. The 1990 Act is a domestic statute and will be unaffected 1992, the Strategic Environmental Assessment Directive 2001 (SEA Directive) and the Environmental Impact Assessment Directive 2011 (as amended by the Environmental Impact Assessment Directive 2014) (EIA Directive), which takes effect in England through the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations), the Environmental Assessment of Plans and Programmes Regulations 2004 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. Wales, Scotland and Northern Ireland have transposed these directives through other legislation.

Under these regulations, certain development in England falling within Part III of the 1990 Act requires the developer of a qualifying project to carry out an environmental impact assessment as part of its planning application. The aim of such assessments is to make the local planning authority (LPA) and other stakeholders aware of any potential significant effects of the development on the environment, and for these to be considered as part of the decision-making process.

The Habitats Regulations impose an obligation on the Secretary of State to identify sites which are important for either habitats or species (listed in Annexes I and II of the Habitats Directive 1992), which must then be designated as special areas of conservation within six years of identification. Competent authorities (the relevant LPAs) are required to consider development which affects these sites, and, subject to certain exceptions, restrict or revoke permission to any minor corrections made by the government via statutory instruments in order to ensure the legislation operates as intended.

What might the UK's post-Brexit environmental policy look like in the long term? On the assumption that the government is free to determine the UK's environmental policy after Brexit (which may not be the case, depending on the type of Brexit that is approved by Parliament), the government has three potential options:

1. Implement a more stringent environmental policy than currently imposed under EU-derived legislation, with the aim of adopting world-leading environmental standards and to effect a 'Green Brexit'

This might be persuasive in concluding a future. trade deal with the EU and would be consistent with the government's shift to a 'clean . economy', announced in the 2018 Budget, and built on by the 2019 Spring Statement. Furthermore, the draft Environment (Principles and Governance) Bill 2018, which was prepared within six months of the Withdrawal Act, indicates that the government's aim is to preserve Britain's status (albeit as currently a member of the EU bloc) as a champion of sustainable development.

The government's approach to air quality is a positive indication of an intention to develop a robust environmental policy. In January 2019, the government announced plans to curb air pollution via the Clean Air Strategy, which set out proposals to end the sale of new petrol and diesel cars and vans by 2040 and explore viable methods of reducing emissions from non-road mobile machinery, particularly in urban areas. The strategy proposes clampdowns on wood-burning stoves and pollution from farms to cut dangerous particulates and ammonia gas from the air, while pledging to support further investment in clean air innovation and the development of new emission-tackling technologies. This forms an important part of the government's 25 Year Environment Plan, which itself sets out detailed targets by which the government will monitor progress towards a better environment, with an emphasis on delivering a Green Brexit. The Clean Air Strategy is not, however, without its critics, with the solution to deal with nitrogen oxide emissions caused by petrol and diesel vehicles via the 2040 phase-out seen as too little, too late by many.

Nevertheless, the Clean Air Strategy's aim of working towards World Health Organisation standards should be seen as a positive move by the government and is demonstrative of an environmental focus and concern which is wider than the influence and control of the EU.

2. The UK could decide to leave the current legislation (which would include any retained EU law) as is and look to align environmental policy with that adopted by the EU

The government may well look to maintain the legislative status quo after Brexit in order to retain access to the EU market. EU officials have already confirmed that UK chemical companies who do not comply with EU rules will be barred. UK companies continuing to export to the EU will continue to be subject to EU product standards and associated environmental and health and safety requirements, whether the UK leaves with or without a deal. Regimes that will continue to impose obligations on UK exporters include those relating to product energy efficiency, eco-design, chemical and producer responsibility.

In the Withdrawal Agreement, both the UK government and the EU agree to ensure that environmental protection in certain specified areas of regulation doesn't fall below the common standards in place at the end of the transition period. This suggests (as a minimum) a consensus as to a common regulatory floor between the EU and the UK, at least in respect of certain areas of environmental regulation, though there are notable absences from the list of regulated areas to which this agreement applies. However, given that the Withdrawal Agreement has been defeated in the House of Commons on three occasions at the time of writing, and will not have any effect should the UK leave without a deal, it may have , no impact at all on the government's approach to environmental policy.

3. In an attempt to cut regulatory 'red-tape, the government could deregulate environmental controls in order to boost development, at the expense of environmental protection

Such a divergence will require a careful balancing act, as the public is unlikely to support deregulation which significantly erodes the current standards. Environmental groups have previously brought litigation contesting the government's support of fracking and it is likely that any significant deregulation would provoke similar action which could delay or hinder any such move.

There is a greater possibility of the government opting to lower environmental standards in areas where the UK has a track record of falling short. One such area is the treatment of urban wastewater (the ECJ having recently found 28 different wastewater schemes in the UK in breach of sewage treatment directives). The Urban Waste Water Treatment Directive has been contentious across the EU, due to the considerable capital expenditure required to implement it. Proposals to extend the Annex of the Priority Substances Directive, to include emerging pollutants such as pharmaceuticals, had estimated knock-on costs to the UK wastewater treatment industry of £30bn. If such proposals come to fruition and changes are introduced that require the upgrade of wastewater treatment plants, the government may well decide that it would not be financially worthwhile to continue to keep pace with EU standards. Such divergence is made more likely due to the fact that wastewater is a domestic issue and its regulation is not influenced by cross-border trade.

Each of the above options, however, is further complicated by the issue of devolution. The planning system and some areas of environmental law (such as waste management) in the UK are now highly devolved, with legislation and policy in Wales, Northern Ireland and Scotland diverging from that currently in place in England. A common position on planning in each devolved region might not emerge following Brexit but it is likely, at least in the short term, that each of the devolved governments will keep in place EU environmental controls in the planning regime.

The development and enforcement of UK environmental law may be weakened by Brexit

Although Brexit is unlikely to preipitate drastic change to the UK's environmental legislation in the short term, there remain factors at play which could cause a divergence from EU standards in the future.

The first of these is the notion of legislative development. The Withdrawal Act will ensure that EU-derived law continues to apply in the UK after Exit Day. While this is beneficial in terms of continuity, the preservation of EU law in this way bears the risk of entrenching current regulation of environmental issues and freezing UK environmental controls and standards at a point in time.

In order to avoid such a situation, the government will need to create and enlist institutions that mirror the substantial work undertaken by the European Commission to develop environmental legislation at an EU level. Such institutions would enable UK environmental legislation to evolve by consulting and advising on technical and scientific developments in environmental understanding. Capacity for such development is necessary if the UK is to keep pace with the EU, without simply conforming to whatever standards the EU deems fit (something which Brexit is arguably centred on avoiding).

Establishing such UK institutions would be no mean feat, and it remains to be seen whether an independent UK regulatory regime is capable of developing and adapting at the same pace as EU environmental regulation. The early signs are not wholly promising, given the perceived inadequacy of the government's existing plans for the replacement of the European Commission's role in the enforcement of environmental legislation in the form of the proposed Office for Environmental Protection (OEP).

The OEP would act as an independent watchdog and hold the government to account on environmental law by incorporating environmental principles into legislation and committing the government to creating and reviewing policies to improve the environment. Its remit would be wide, covering water and air quality, contaminated land, pollution, marine and nature conservation.

However, serious concerns have been raised over the OEP's independence. The OEP's chair and between two and five other non-executive members would be appointed by the Environment Secretary, who would also exercise discretion over the level of funding that the office would receive in order to fulfil its role. Though it is proposed that the OEP will be located in Aberdeen (away from Defra), the separation of powers would appear to be insufficient to protect against potential executive interference with the OEP, and arguably fetters the office's ability to hold the government to account.

The scope of the powers that the OEP will possess has also been called into question. The office would be confined to issuing 'information notices' (requests for further information on alleged breaches), followed by 'decision notices' (notices setting out measures of recourse). Importantly, the OEP would not possess the power to issue fines, meaning that the office's enforcement capabilities would be toothless when compared to the enforcement powers held by the European Commission. In addition, the OEP will not be up and running until late 2020 (which could even be pushed back until late 2022). The government has confirmed that an interim secretariat will be established in the intervening period which will have powers to take action retrospectively. However, the size of this stop-gap institution once again highlights the downgrade when compared to the power and resources of the European Commission. The secretariat will consist of only 16 civil servants tasked with recording breaches of environmental law. The EU's environment directorate is comprised of 445 officials.

The resulting scenario may be that despite the UK's black letter law remaining largely unchanged post-Brexit, its practical evolution and application could be diminished through a lack of access to EU resources and infrastructure. This has been referred to as the 'environmental governance gap'.

Conclusion

Brexit is not likely to change environmental and planning regulation in the UK in the short term. Nevertheless, as the impact of Brexit cascades through trade and development relationships, inevitably pressures will be placed on environmental regulations and controls. Resources dedicated to regulation may become strained or change direction, and it won't come as a shock to many if over time some of the EU controls are watered down, revoked, under-enforced or just ignored. If this all sounds mildly depressing, be encouraged by the government's 25 Year Environment Plan and associated Clean Air Strategy. This demonstrates positive support for domestic controls of environmental issues and on the face of it is an ambitious blueprint for the future of the UK's environment.

This article was first published in Property Law Journal.