Brexit: What does it mean for Planning & Environmental Law?

  • Insight

11 July 2016

Scotland’s planning system decides what gets built and where and is of fundamental importance to society. EU law and policy exerts a powerful influence on Scottish planning and environmental law and policy which guide this decision-making. It does so through EU Directives requiring implementation in member states, regulations which are directly applicable and guidance and decisions of the European Court of Justice.

EU influence on UK environmental standards

For many it is considered that the EU has, on the whole, raised the environmental standards of the UK across many important areas involving human health and the environment.

The overarching aim of the planning system under the Scottish Government’s central policy (Scottish Planning Policy 2014) is to achieve sustainable economic growth with a presumption in favour of sustainable development which owes much to EU influence. The focus on renewable energy development and addressing climate change are good examples of this. 

The Scottish Parliament has devolved powers to legislate on planning and environmental matters but it is in the sphere of environmental protection that the greatest effect of EU influence has been experienced. This provides an important counter balance to ensure that the potentially damaging effects of new development are assessed, understood and properly mitigated. It may mean that development cannot proceed in a particular location and may have to happen elsewhere or that mitigation measures must be applied.

Environmental Impact Assessment Directive

The majority of environmental protection law affecting new development arises from the EU. Notable amongst this is the Environmental Impact Assessment Directive 2011/92/EU which requires that qualifying development (usually but not limited to large scale development) is assessed in terms of its potential environmental impacts which require the developer to prepare an Environmental Statement to accompany a planning or related application. 

The EIA Directive is given effect through domestic law in terms of the 2011 EIA Regulations. Compliance is a time consuming and costly process and can often be the focus for legal challenges advanced by objectors and for all of these reasons the process can be unpopular with developers. 

Interestingly, a new and strengthened EIA Directive with further requirements including the need for ongoing monitoring is due to be transposed into domestic law in 2017. For development proposals that may not be consented until 2017 it would be prudent for their assessment of environmental impacts to be future-proofed against the anticipated changes that the new EIA Directive will require.

Other relevant EU Directives include the Birds Directive 2009/147 and the Habitats Directive 92/43 which are transposed into domestic law through the Habitats Regulations. These place a high measure of protection to certain species and their habitats requiring what is called “Habitat Regulations Appraisal” for certain plans and projects that affect protected sites (terrestrial and marine) and species. The current judicial review against the Scottish Minister's decisions to consent 4 major offshore windfarms in the North Sea is based on the Birds Directive. 

In addition to the above, there are a number of other Directives which have been transposed into domestic law (through Regulations) on important areas such as water quality (Water Framework Directive 2000/60), air quality (Ambient Air Quality Directive 2008/50), waste (Waste Framework Directive 2008/98) and strategic environmental assessment for plans and programmes (Environmental Assessment for certain Plans and Programmes Directive 2001/42).

Impact of Brexit

The impact of Brexit on Scottish planning and environmental law depends on how Brexit is implemented and what type of new relationship the UK would have with the EU. No doubt environmental law derived from EU law will require to be carefully reviewed and consideration given as to whether it is kept in whole or in part or repealed.

If the UK retained access to the single market through being part of the European Economic Area (e.g. similar to Norway) then most of the EU laws and policy (with the notable exception of the Habitats and Birds Directive which are specifically excluded from the EEA Agreement) would continue to apply- although the UK would have a limited power to influence them.

In the event of a total Brexit (an exit from the EU) the UK would cease to be bound by the obligations set out in the EU laws, although the UK and Scottish Government may wish to avoid a legislative vacuum caused by the repeal of EU laws before new domestic laws are in place. 

Should total Brexit occur, interim measures may well be put in place to ensure that domestic legislation deriving from EU law is preserved at least in the meantime while alternatives are explored. The UK would also continue to comply with other international agreements/treaties covering environmental protection. 

The concern for many is that in the event of Brexit that pressure will be placed on the UK Government and the Scottish Government to reduce levels of environmental protection and place additional weight on economic development. No article would be complete without mentioning two important issues that may impact on all of this. The first is that Brexit is ultimately not given effect to and if it is then the emerging possibility of a second referendum for Scotland’s independence from the UK on the back of Scotland’s support in the EU referendum for remaining within the EU.

Further information

If you have any particular concerns please get in touch with your usual contact at Anderson Strathern or, alternatively, Alastair McKie in our planning team.