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22/12/2020

Legal landscape: Delay to environmental legislation spells uncertainty for developers

Delays to the government’s environment bill means the UK will be without its promised environmental legislation when the Brexit transition period ends, says Claire Petricca-Riding. This is not good for the development industry

The environment bill has been discussed for over a year now. Since the last general election it has formed part of the draft bills being proposed, having made it into the Queen’s Speech on 19th December 2019.

This is the government’s flagship bill which is set to set down in primary legislation the government’s 25-year plan and the plans and policies for improving the environment, setting legally binding targets across four key areas, as well as the mechanism for the Office of Environmental Protection (what has been called the ‘green watchdog’).  

The bill has been delayed through the Commons since its first reference in the Queen’s Speech. This has been in part down to the current pandemic, but some of it in part is down to it not having enough debate in the Commons.

Furthermore, the lack of action setting up the OEP means there will be a hiatus during which there will be no body to oversee compliance with the new legislation.

In early November, George Eustice, the environment secretary, said that all cases before the European Court of Justice will fall away at the end of the transition period. The European Commission waded into the debate to remind Eustice and the UK Government that the withdrawal agreement states that the ECJ will retain jurisdiction for cases concerning the UK before the end of the transition period and these matters will be heard.

"The UK will be without an environmental watchdog at the end of the Brexit transition period and there will be a gap in environmental legislation and the way this is governed"

It does raise, however, a confusing picture of what will happen after that period, with complaints having to be made to a shadow secretariat which will in effect babysit cases until the OEP is set up and functioning. This is not due until the summer of 2021, with 2022 looking more likely.

This delay means there is no longer enough parliamentary time available for the environment bill to pass into law before 1st January 2021 – with the result that the UK will be without an environmental watchdog at the end of the Brexit transition period and there will be a gap in environmental legislation and the way this is governed.

Given the announcements from the cabinet throughout the summer which went to heart of the key environmental issues the country faces, the delay of this vital piece of legislation is a disappointing setback.

Not only is the bill delayed, but we have been promised various consultations on the 16 binding targets the government intends to set in the four main areas of air, waste and resources, water and biodiversity, together with the fundamental reform of the environmental impact assessment framework. None of the consultations has yet come to light.

There have been further amendments to the bill, which seeks to introduce species conservation and protected site strategies in what is clearly an alignment with the much-discussed zonal planning policy that has been introduced in the recent planning white paper.

Further, the amendment to the role of the Office of Environmental Protection casts doubt on its independence.

This lack of information combined with the Planning for the Future white paper, Brexit and the current global pandemic has led to further uncertainty not only for the development sector, but for us all, which will restrict growth and innovation  

Claire Petricca-Riding is partner and national head of planning and environmental law with Irwin Mitchell

Image credit | iStock

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