This analysis was first published on Lexis®PSL.
Since the UK voted to leave the European Union (the EU) it has enacted various laws to give effect to the referendum result, including the European Union (Withdrawal) Act 2018 (the EU(W)A 2018). The rationale behind the EU(W)A 2018 (as later amended) was to maintain legal certainty following Brexit, by (among other things):
- repealing the European Communities Act 1972 (the principal law giving effect to EU law in the UK and providing for its supremacy over UK domestic law); and,
- preserving EU-derived domestic legislation or converting direct EU legislation into domestic law as in force on 31 December 2020 as “retained EU law” (REUL).
As the arrangements governed by the EU(W)A 2018 were never intended to apply indefinitely, the Retained EU Law (Revocation and Reform) Bill (the Bill) seeks to repeal, or to facilitate the amendment of, certain REUL, as well as clarifying REUL’s status and interpretation.
Key provisions in the Bill relevant to planning law and practice
As initially drafted, key provisions in the Bill include:
- a sunset mechanism pursuant to which REUL will be revoked on 31 December 2023, unless exempted via regulations and thereby preserved (Clause 1). This mechanism may be extended in relation to a specified instrument or specified description of legislation, but not beyond 23 June 2026 (Clause 2);
- the repeal of section 4 of the EU(W)A 2018 (as amended) on 31 December 2023 (Clause 3). The consequence is that anything which, immediately before 31 December 2023, is REUL by virtue of that section will not be recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed);
- the abolition of the principle of supremacy of EU law over domestic legislation, with effect from 31 December 2023 (Clause 4);
- new tests to be applied by higher courts (such as the Court of Appeal and the Supreme Court) when deciding whether to depart from retained EU case law or retained domestic case law. For example, higher courts must have regard to (among other things) the extent to which retained EU case law or retained domestic case law "restricts the proper development of domestic law". The Bill also includes new reference procedures for lower courts (Clause 7);
- the grant of powers to national authorities post-2023 to restate any secondary "assimilated law" (how REUL is described after 31 December 2023) by regulations up until 23 June 2026 (Clause 13);
- the grant of powers to national authorities to enact regulations up until 23 June 2026 (a) to revoke any secondary REUL entirely; or, (b) to replace secondary REUL with "such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives" or "such alternative provision as the relevant national authority considers appropriate" (Clause 15). This is subject to the proviso (among other things) that the overall effect of any changes in relation to a particular subject area do not increase the regulatory burden (for example, financial cost or administrative inconvenience).
What aspects of the planning system are likely to be impacted by the Bill?
Planning control regulates the use and development of land and buildings. Environmental protection is one of a number of considerations (albeit an important one) taken into account by local planning authorities (LPAs) when determining whether to grant planning permission or, to exercise some other statutory power. It is not the case that planning permission will automatically be refused for schemes that involve environmental risks.
Within the UK planning system, the assessment of the effects of a proposed development on the environment and habitats is derived from EU law. These assessments may be affected by the Bill. For example:
- the Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations), one example of EU-derived legislation, requires LPAs, if a proposed plan or project is likely to have a significant effect on a protected habitat site, to carry out an appropriate assessment of the implications for the site in view of the site’s conservation objectives
- the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the EIA Regulations), another example of EU-derived legislation, prohibits the grant of planning permission for qualifying "EIA development", unless an environmental impact assessment has been carried out to identify, describe and assess the direct and indirect significant effects of the development on a range of factors, including biodiversity.
What are the implications of the Bill for REUL relevant to the planning regime?
Unless restated, amended or replaced with alternative legislation, all REUL relevant to the UK planning system will cease to apply from 31 December 2023, unless an extension applies. This could mean a number of environmental considerations and assessment requirements could fall away. Rather than liberalising the planning system, however, the timeframe and volume of legislation mean that there is a real risk that the Bill results in more delay and bureaucracy while developers and authorities grapple with a changing legislative landscape and potentially rushed, poorly drafted replacement legislation. These problems are likely to be exacerbated by the fact the Bill seeks to grant higher courts discretion to depart from retained EU case law and retained domestic case law in certain circumstances, including where the case law has been determined or influenced by retained
EU case law.
While it remains to be seen what the Government will do, our prediction is that the Bill will not herald a new dawn of environmental protections that exceed existing standards (certainly, the UK has rarely sought to do this before and Clause 15 may act as a break in terms of enhancing the position). Similarly, given climate change and the recognised need to conserve and enhance the environment and biodiversity, it seems unlikely that the Bill will result in significant deregulation, particularly in relation to the environmental assessment and habitats regimes. This expectation is supported by the Government’s actions to-date. For example, while sections 112 and 113 of the Environment Act 2021 grant the Secretary of State powers to amend the Habitats Regulations (including in relation to appropriate assessments), in doing so the Secretary of State must:
- have regard to the particular importance of furthering conservation and enhancement of biodiversity;
- be satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.
This article applies to England only.