Monday, 7 March 2016

Planning Law – the European dimension

It is slowly dawning on people that if this country votes to leave the European Union on 23 June, there will be numerous knock-on effects, most of which will be unwelcome at best and in many cases seriously damaging to our wider interests both at home and abroad.

One of the canards the ‘outers’ frequently peddle is the idea that, as members of the EU, we can’t make our own laws in this country. This is complete nonsense, as anyone who is familiar with our legislative process is well aware. It is entirely proper that as members of the Single Market we should, so far as practicable, harmonise our legislation with that of other members, so as to create a level commercial playing field, but in practice we have done no more than that. If we wish to remain in the Single Market (like Norway) in the event of a vote to leave the EU itself, we will still have to comply with the rules that apply in the EEA (the European Economic Area), and this will necessarily involve compliance with European law in order to maintain the required level of legal harmonisation. The same would apply to any bilateral agreement that the UK might attempt to negotiate with EU countries as an alternative (which puts paid to one of the delusions from which Boris Johnson and others seem to be suffering – which might be termed “the BMW argument”).

It cannot realistically be argued that compliance with EU rules imposes any significant burden on this country in legal or economic terms. Arguments about ‘sovereignty’ are just so much hot air – entering into any treaty obligations involves accepting some limitations on the freedom of action of any country, whether it is in connection with membership of the UN, NATO or any other international organisation (including various international trade pacts).

European law has comparatively little direct effect on our planning legislation in this country, because, like the planning systems in each of the other member states, our development management regime is purely home-grown, and is tailored to the specific needs of the three separate jurisdictions in this country – England & Wales, Scotland and Northern Ireland (with the Welsh planning system now becoming increasingly divergent). This is a legal planning framework over which Brussels has no direct control, either in its formulation or in its practical operation.

Where European law and European directives are relevant to town and country planning in this country is in relation to environmental protection, and in particular the protection of rare and endangered species and their natural habitats. This European law has not been written into our primary planning legislation, but operates through our subordinate legislation governing the practical operation of development management procedures. The objective is to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals.

The primary means by which this is secured is through the requirement in appropriate cases for an Environmental Impact Assessment (EIA). EIA is not automatically required. There are clear criteria for judging those cases where EIA may be required. In those cases where an EIA may (or may not) be required, the first step in confirming that requirement is by means of a screening opinion from the LPA (or a screening direction from the Secretary of State). Despite some whingeing from some sections of the development industry, the procedural requirements are not unduly demanding, and they are no more than is necessary if we are to afford some protection to the natural fauna and flora in our countryside. I don’t propose to go into all the detail, but an adverse environmental impact is not an absolute bar to development; a judgement is required to find the balance of public interest in any particular case.

It is interesting to note how our courts have dealt with planning and environmental cases involving a European dimension. Far from a kow-towing to an allegedly all-powerful Brussels-based Eurocracy (as the Europhobes would have it), our courts have demonstrated their long-established independence, and have applied European law in a proportionate and restrained manner. It is clear even from the decisions of the European Court of Justice itself that the application of European directives (such as the Birds Directive and the Habitats Directive) requires a balancing exercise, in which the public interest may in fact favour the approval of a development project, even where it may impinge to a greater or lesser extent on nature conservation interests.

I strongly suspect that what is dressed up as opposition to alleged over-regulation at the behest of Brussels is in reality just another manifestation of the free market dogmatism espoused by the right-wing of the Tory party and their financial supporters, who yearn to see the untrammelled operation of market forces, irrespective of the economic, social and environmental consequences.

These people may turn out to be frustrated in their aspirations, even if we do leave the EU. It cannot realistically be supposed that all the environmental protection that has been written into our subordinate planning legislation will instantly be repealed. In fact, there is a very strong case for its retention in substantially the form in which it is currently framed, and I rather doubt whether even a Tory government would dare to dismantle these environmental safeguards, which will clearly still be needed in order to afford appropriate protection to our fauna and flora.

As in so many other areas of economic activity, leaving the EU would make no practical difference to the level of regulation to which development is subject in this country, and from that point of view ‘Brexit’ would serve no useful purpose whatsoever. On the contrary, it would in fact be extremely damaging in its consequences in all sorts of ways.

One final point is worth emphasising. Leaving the EU would have no effect whatsoever on our treaty obligation to comply with the European Convention on Human Rights. This is because neither the European Union, nor any of its institutions (including the European Court of Justice – the ECJ) have any role in the enforcement of the Convention. The European Court of Human Rights (ECHR) has no connection with the EU and, nothing at all to do with the ECJ. It is the same right-wing elements in the Tory party (and their allies in the press) who are so Europhobic and chauvinistic, who also whinge about our adherence to the European Convention on Human Rights. There is no connection other than this.

For internal party reasons, Cameron and the current party leadership have felt it necessary to pander to these Neanderthal elements in the party, and so they have embarked on an attempt to draft amending legislation which is intended in some way to lessen the influence of the ECHR on our affairs. However, by all accounts, government lawyers are finding it difficult to frame legislation that would strike the sort of balance the government apparently wants to achieve. As with the environmental protection mentioned above, there is clearly a need to protect human rights (including workers’ rights), and to preserve the long-established concept of the rule of law in this country. Right-wing ministers seem to be irritated by the ability of the courts to call in question the lawfulness of the government’s actions, but this is an essential bulwark of our liberty, and must be preserved. Our continued adherence to the European Convention on Human Rights (and compliance with the rulings of the European Court of Human Rights) is an essential element in that protection.



  1. Well written and well argued, thank you. And I'm someone who is inclined towards Brexit. Having practised planning & environmental law for most of my 45 years professional career and still doing it for CPRE on a pro bono basis, I am fully supportive of the need for environmental protection e.g. by EIA. But my concerns are over the ever closer union dogma of the EU and the clear desire of many in the EU establishment to see a supranational state. I'm also concerned that the EU seems incapable of reform in so many areas where reform is needed e.g. in the ridiculous spectacle of shuttling between Brussels and Strasbourg at great expense. The jury is still out for me and I have not made up my mind. Much still to read and consider. Thank you again anyway.

  2. Thanks for this elegantly written piece of writing

  3. I am grateful to Nicholas Whitsun-Jones for his comments. I have to say that I have no concerns over the concept of ‘ever closer union’. (What are we afraid of?) I think it might be in everyone’s interests in Europe, including ours, to move gradually towards a more cohesive form of organisation - call it a ‘supra-national state’ if you will. In practice, however, whatever the aspirations on the part of some people in Brussels might be, we a very long way from that at present, and it may well remain no more than a distant dream for these visionaries.

    There is very widespread agreement in Europe that the EU is in need of reform in various ways, and if we remain a member we can influence that process of reform. But we will lose any power to influence what the EU does if we cease to be members, while still being affected by it and even to a large extent governed by its rules (for the reasons I explained in the blog post above).

    Incidentally, the total cost of the entire European Commission in Brussels (the so-called ‘Eurocrats’) is no more than the cost of running one of our own County Councils. It pales into insignificance compared with the costs of our own home-grown civil service in Whitehall.

  4. Thanks Martin. I voted to join the EC back in the 70s but I was voting for an economic alliance, not a political union. I have no desire to be part of a federalist structure, which is what it would mean if we followed your line of thought. National identity is important to me. Perhaps that is my age and hopefully none of what you mention will come about in my lifetime even if the vote is to stay in. There we are. I have no desire to prolong debate via your blog as I'm not sure it is the appropriate forum. It is a very good blog and I value your comments on planning law. Always informative and useful.

  5. Martin

    >Incidentally, the total cost of the entire European Commission in Brussels (the so-called ‘Eurocrats’) is no more than the cost of running one of our own County Councils. It pales into insignificance compared with the costs of our own home-grown civil service in Whitehall.

    That strikes me as a misleading, almost propagandistic, comparison, since the European Commission is only one small part of the EU apparatus, and I suggest the comparison is being made with the entire budget of a County Council, which includes all the cost of delivering the services such as teachers in schools, dustmen etc, rather than just "running costs".

    I accept that the comparison may not be yours.

    Taking some numbers, the difference for a fair comparison is 2 orders of magnitude:

    EU budget including all expenditure on programmes etc for 2015: 145 bn Euro,
    The cost of "running" the EU institutions is put at 6% = 8.7 bn Euro.

    Kent County Council total budget 2015-2016: £1.82 bn = 2.36 bn Euro.
    Kent County Council Management, support services and overheads: £0.092 = £0.12 bn Euro.

    We can argue about bits and pieces being in or out of each budget, but even if you double one and halve the other the difference is still orders of magnitude.


  6. Taking up the point raised by Matt Wardman, I referred to the actual size and cost of the ‘Eurocracy’ in Brussels, as they are so often portrayed (without any justification whatsoever) as a massive, and expensive organisation.

    To complain about the overall expenditure of the EU is much the same as complaining about the expenditure of our own government (on defence, health, education, welfare, pensions, and various infrastructure projects, among many other things) They collect our taxes, and then they go and SPEND it all, forsooth!

    Matt’s comment underlines the fact that most of what the member countries contribute to the EU goes out again in grants to the member states to support all sorts of things, including agriculture, and also infrastructure projects in places like Cornwall, West and North Wales and the remoter parts of Scotland. I see little point in arguing about who gets what, and whether we get back less than what we contribute. It is rather like the super-rich, who educate their children at private schools and have private health insurance, objecting to paying taxes to fund the National Health Service and state education.

    If we leave the EU, much of the money we currently contribute to the EU will have to be spent in future on supporting British agriculture, and on funding infrastructure and regeneration projects, to replace the funding currently disbursed through the EU (although there is a danger that George Osborne may be tempted to hang on to the money, and to deprive the areas that have previously benefited from EU grants). It is either naïve or disingenuous to assert that we can ‘save’ all the money we currently contribute to the EU by leaving it, or even a small proportion of it.

    I agree with Nicholas Whitsun-Jones that this is probably not the proper forum for this debate, bearing in mind that I usually confine myself fairly strictly in this blog to planning issues, and I only really intended to deal with the European dimension of planning law. So I will now draw a close to this discussion (which will clearly be pursued elsewhere for the next three and half months!)

  7. I don't have strong views on whether we should stay or go, but what really annoys me is the superficial sloganeering on both sides of the argument. This blog post however sets out in the clearest possible terms the real relationship between European and national legislation, in particular that the ECHR has NOTHING to do with the EU. As such it deserves to have a much wider audience than a planning blog attracts.