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The Brexit effect

Words: Huw Morris
UK landscape

June’s referendum on whether the UK stays or leaves the EU is generating more heat than light. So what are the implications for planning? Huw Morris tries to find out

Confusing, messy, riddled with vested interests, bedevilled by claim and counter-claim, beset by playground insults and prejudice.

For a vote that is more important than any general election and the most significant ballot in 40 years, the EU referendum has so far been a poor advertisement for UK political debate. Immigration, business and trade have dominated. Yet, as much of the UK’s planning system is intertwined with European and international law, particularly on the environment, what are some of the wider consequences of Brexit?

Initially not many, according to Bircham Dyson Bell partner Angus Walker. Under the Treaty on the European Union, a withdrawal agreement would be negotiated with the country leaving after two years or when such an agreement would come into force – which could take longer. EU regulations and treaties would no longer apply to the UK from that point. European directives are a different matter.

“Directives are a bit different because they are transposed into national legislation which is then the operative law, so that would not disappear automatically even if the directive no longer applied,” says Walker. “Some provisions of directives have been successfully argued in court that they have ‘direct effect’ though, so that plank of applicability would disappear upon exit.

“Most of the secondary legislation implementing directives is made under the European Communities Act 1972, and so if that act was repealed without any saving provisions, it would mean all the UK implementations of directives falling away. This is unlikely to happen because it would cause chaos and so secondary legislation is likely to be saved, at first at least.”

"The UK would have a choice: mirror the EU protections without having a say in their development, or fall behind with the protection of people and the environment"

But things get even more complicated further down the line. Like many organisations, the RSPB, WWF, and the Wildlife Trusts are neutral on the referendum, but they asked the Institute for European Environmental Policy (IEEP) to analyse the EU’s impact on the environment and what would happen under different scenarios for withdrawal.

“We are not endorsing either campaign, but we do want to challenge both sides to think about the implications for the environment and make that part of the public debate,” says RSPB head of sustainable development Simon Marsh. “It’s thinking about the risks to environmental protection generally from leaving the EU.”

The IEEP found significant EU plus points have been measures to safeguard birds, protect habitats and deliver cleaner air, rivers and beaches, as well as water and waste management policies. Black marks have been the Common Agricultural Policy and to a lesser extent the Common Fisheries Policy.

On balance, the IEEP concluded that the more stringent environmental standards within the EU single market have had significant environmental and health benefits. Moreover, during the past four decades the UK has considerable form in providing scientific and policy advice to the development of EU legislation on environmental quality.

The report goes on to suggest that many of the initiatives to improve environmental quality in the UK would not have taken place, or would not have been pursued as effectively, without legal pressure from EU legislation, and the benefits to citizens and businesses would not have happened. This finding resounds with many observers of a certain vintage who recall that for the first two decades of the country’s membership of the EU, the UK was dubbed “the dirty man of Europe”.

In and out: An EU checklist


 EU MembershipInside the EEATotal Brexit
Will the UK retain access to the single market?YesYesNo, everything must be negotiated
Will the UK pay into the EU budget?YesYes, but would be less under an access dealNo, unless negotiated
Will EU laws continue to apply to the UK?YesMost, except the Birds, Habitats and Bathing Water directovesNo
Will the UK have a say in EU policy?YesOnly consulted during preparationNo
Will the UK face mechanisms for compliance and penalties for non-compliance?YesYesNo
Will the UK need to negotiate new agreements?NoYes, in some areas - particularly agriculture and fisheriesYes, across a wide front
Could a future government lower current environmental standards?Only at EU levelNot where they are covered by EU obligationsYes, although UK exporters must abide by EU standards and will face tariffs

Source: Institute of European Environmental Policy

What if we say ‘No’?

So what about a “no” vote? There are two scenarios. The first is that the UK leaves the EU but stays in the European Economic Area (EEA) or the European Free Trade Association (EFTA) to retain access to the single market – otherwise known as the Norway or Switzerland options advocated by “leave” campaigners.

As a member of the EEA, many EU environmental laws would be mandatory, with the notable exceptions for environmental protection of the Birds, Habitats and Bathing Water Quality Directives.

Crucially, the UK would no longer have full representation in EU institutions that shape legislation and would be limited to the consultation of national experts. It would have no part in formal negotiations, would not be able to vote and would have no MEPs to influence legislation in the European Parliament.

As an EFTA member, the UK would not be required to adapt most EU law except where it is directly related to the single market. Under this model not only would the UK have no representation in shaping legislation, it would not have the opportunity for consultation. Under both models, the UK still pays into the EU budget, although the contributions would be less.

In the second “leave” scenario, the UK becomes an independent state outside the EEA and EFTA and would negotiate separate bilateral agreements with the EU. The UK would no longer be governed by EU law – except those that apply to the single market – and could choose to strengthen, weaken or scrap current laws.

According to Walker, the main directives affecting planning are the Environmental Impact Assessment (EIA) Directive, requiring environmental effects to be assessed and considered in the balance by decision-makers, and four directives that require absolute standards to be maintained in all but exceptional circumstances: the Habitats and Birds Directives; the Ambient Air Quality Directive; and the Water Quality Directive. The revised EIA Directive, due by May 2017, will still have to be implemented, given that this is before the two-year limit of June 2018 for exit.

“While these would stay in place at first, there may well be a tendency over time to weaken them as the superior obligations requiring them to be adhered to would no longer exist, and there would be economic pressures and temptations to do so,” he says.

“The UK would have a choice: mirror the EU protections without having a say in their development, or fall behind with the protection of people and the environment.”

Riki Therivel, partner in sustainability consultancy Levett-Therivel, sees other mines beneath the surface. “Strategic environmental assessment, habitats and EIA mean a clear cost to development but you don’t see the harm that is avoided,” she says.

“It’s the same with homelessness services – it’s easy to see their cost but the disbenefits become obvious once they are cut. They might be seen as a regulatory burden, but when things go wrong people will see their value.

“The weakening of environmental legislation would also be dangerous to the UK which has an internationally renowned planning and consultancy sector and many international companies have offices here. You have to wonder whether that would continue in the long run.”

Environmental assessment

Even before the IEEP’s analysis, the Brexit scenarios had concerned 11 of the UK’s leading green advocates and academics, who fear withdrawal would encourage future governments to rip up environmental protection in the name of short-term competitive advantage.

In a letter to environment secretary Liz Truss, they argue that far from being red tape, EU regulations have been key to improving the UK’s environment, which people now take for granted. A vote to leave would jeopardise international efforts to tackle climate change and pollution and improve biodiversity, as many EU environmental directives have only been possible because they apply across all 28 member states – and so no-one is put at a competitive disadvantage by not adopting them.

They also say that if the UK were to pull out of the EU the government would be under huge pressure from industry to water down environmental protections in areas like energy efficiency to help the UK to become more competitive against former European partners.

The letter was signed by among others Sir John Lawton, former chair of the Royal Commission on Environment and Pollution, Sir John Harman, former chair of the Environment Agency, Poul Christiensen and Helen Phillips, former chair and chief executive respectively of Natural England and ex-National Trust director general Dame Fiona Reynolds.

"Europe has made a difference on whether development has an impact on the environment, and if you take that away you set planning back by 30 years"

But it’s not just leading environmental advocates expressing concern. Caroline Spelman was environment secretary between 2010-12 and has a particular take on life inside Whitehall. “There are vested interests that want to water down the nature directives for getting in the way of ‘essential development’ who then very quickly use them to protect their own communities when they don’t want it,” she says.

“When I was environment secretary, I looked into the impact of the Habitats and Birds Directives on planning applications and found they affect just 0.5 per cent of applications.”

Both Brexit scenarios also raise the thorny issue for planners of recent government policy towards deregulation. The wide-ranging Enterprise Bill aims to remove “regulatory burdens” on businesses, sets a target of £10 billion savings for the current government and obliges regulators to obtain the views of business on the effect their duties have had and to include these views in annual performance reports.

“Where is planning, certainly in England, without Europe?” says Town and Country Planning Association chief planner Hugh Ellis. “I am not sure it exists anyhow with all the deregulation but the one fundamental thing we do have are European directives. Only Europe has made a difference on whether development has an impact on the environment and if you take that away you set planning back by 30 years.

“Most of the good practice is in Europe, as is most of the technological innovation. We have not done a Freiburg or a Malmö and we will be cutting ourselves off from that.”

The EU and Our Environment is available at tinyurl.com/planner0416-brexit-environment 

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