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Alex Madden



26th August 2016



Brexit, domestic planning and environmental law

The result of the EU referendum caught many people by surprise, including those in the developer world and those advising within it. The UK remains in the EU for the time being but while the nation awaits clarification about if and when Article 50 will be invoked, it seems inevitable that the fallout of Brexit will have implications for domestic planning and environmental law.

It is fair to say that EU law only has a minor effect on the planning laws that govern England and Wales. Its main focus relates to environmental protection – of which the Waste Framework and Water Framework Directives form part – although there is evidently a degree of overlap.

Certain development proposals – such as large residential schemes, installations for intensive farming and theme parks – engage the Environmental Impact Assessment Directive which is currently transposed into the law of England and Wales through the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. They will, at the very least, require a screening opinion from the local planning authority where the likely environmental effects of the scheme can be assessed. Similarly, some forms of development may impact on certain endangered species or natural habitats which are afforded special protection through the Conservation of Habitats and Species Regulations 2010 that derive from the Habitats Directive.

Although it will be a matter for the legislature (as the aforementioned legislation is drafted in compliance with these Directives) there appears no logical reason to revoke or amend them because the sound principles on which they are based have served the development world well and have ensured rational balanced decisions are reached. Further, these checks and balances seek to safeguard environmental concerns in the built environment, ensuring the likelihood of litigation by aggrieved parties is minimised.

Some major infrastructure projects have grabbed the headlines over the past few years, notably the expansion of Heathrow, the nuclear power station at Hinkley Point and HS2. However, whilst the UK has benefited from significant financial contributions in the form of European structural funding to support economic growth since the mid 1970s, the EU referendum result has created some uncertainty about whether cash earmarked for the UK will be lost forever. Only time will tell and the level of such funding will no doubt form part of the Brexit negotiations.

Another area of concern that may impact on house builders is what Brexit will mean for housing needs. Some commentators have speculated a reduction in migration levels will reduce housing need numbers. Central Government’s household projections are based on, amongst others, population estimates produced by the Office for National Statistics, which are then assessed by local authorities. However, it is currently too early to predict any possible trends since household projections will be governed by the Brexit deal that is brokered between the UK and the EU.

What is certain is that any revisions to current legislation such as a further relaxation of rules for the residential conversion of agricultural buildings or the enactment of various provisions brought about by the Housing and Planning Act 2016 are likely to be delayed and will fall down the Government’s list of priorities.

If you would like to discuss any aspect of this article, please get in touch with Alex Madden or your usual Thrings contact.

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