Planning matters

Okay so I thought it would be close but I did not think it would be that close. And I also did not think that a majority would actually vote to leave the EU… Having slightly recovered from the shock – like most people – I have entered a stage of acceptance and I want to know more about all sorts of things, including how the vote for Brexit might affect NLP’s (‘EIA’) team, whose very existence is defined by an EU Directive.

In terms of the requirement or otherwise for EIA, nothing changes for the foreseeable future. The EIA Directive still remains in force, as do the current separate EIA Regulations for England, Scotland and Wales. And the requirement for the ‘new’ Directive 2014/52/EU to be transposed into UK law by 16 May 2017 also remains. This is because, even if notice is given soon to leave the EU under Article 50 of the Treaty on the European Union, the UK has 2 years to complete the process (unless an extension is agreed), with EU legislation remaining in place until departure.

The Government is likely to need every single second of those two years, if not longer, given the estimated 80,000 pages of EU agreements that someone needs to decide whether to keep, amend or repeal and the renegotiation or replacement agreements with Member States individually or in groups. During the two years, the primary focus is also likely to be on the process of leaving the EU and governing the UK, as well as stabilising the economy and trade. EIA and environmental protection will remain important but are unlikely to be top of the agenda. So where does that leave EIA?

Legal experts fully expect that we will see primary/emergency legislation passed that retains current legislation and case law in the immediate future and intervening period, until possible replacement. The Government may also introduce legislation with a mechanism to deal with issues arising on an ad hoc basis, until we know the full consequences of leaving the EU. If or how this actually plays out is unknown, but legislation along these lines will certainly be needed if there is to be any clarity for EIA – and the many other legal matters currently covered by EU legislation.

One benefit of the UK’s EIA Regulations is that they are a standalone set of regulations that can continue to remain in force for qualifying development projects. However there will inevitably be gaps in some policy areas as a result of referential drafting (where the UK has adopted skeleton legislation that relies on EU legislation to fill the gaps) and technical standards and targets currently set at the EU level (such as the UK’s international climate targets, which are currently negotiated as part of the EU block). There has also been a vacuum in UK environmental policy for some years because EU legislation has been so active in this area and the UK Government has left it to EU legislation to do the job.

So what can be done in the meantime? The Government is certainly going to need a bit of help from people with the right knowledge and expertise. In a period of austerity, where jobs have at worst been cut and at best not been replaced, the necessary people may not be in place to ensure that the best arrangements are established going forward. It is therefore important that dialogue channels are open with policy-makers to ensure that important legislation is not lost and any new or amended legislation is forward-thinking and robust.

With regards to the 30-40 years of case law on the interpretation of EU Directives which influences our work on an almost daily basis, legal experts suggest that a cut-off date is set to clarify when matters should be referred to which court and to define the applicability of existing case law. Even after the cut-off date, European Court cases will still be relevant and should still be binding – although a litigious movement may emerge that seeks to challenge decisions made by a different decision-maker, under different law.

Ultimately it seems that in a time of uncertainty, there is actually quite a bit of certainty about EIA. It is not going anywhere soon and NLP’s EIA work will continue unaffected; the Company is ready and poised too, to input into the review process as and when required.