Monday, 27 June 2016

Planning law after Brexit

After last Thursday’s referendum result, there is a great deal of head scratching going on, in an effort to understand the mind-boggling ramifications of the decision to leave the EU. As many of us were well aware, this is going to be far more complicated than the Brexiteers pretended, and the effects will include more than a few unintended consequences. The task of unravelling all these complexities is daunting, and I suspect may even prove to be impossible. Don’t be surprised if the government (of whatever composition or complexion) eventually decides that the only practical solution is for the UK to remain a full member of the European Union after all, and introduces legislation to abrogate the result of the referendum!

For the time being, we remain in the EU, and despite the political and economic turmoil that has ensued (again, as expected), there is no change yet either in the UK’s status as a member of the EU, nor in any of the legislative provisions that apply domestically, including those that give effect to European law and to directives from the European Commission. As both the Prime Minister and leading Conservative members of the ‘Leave’ campaign have made clear, the timing of any notice to invoke the Article 50 procedure that would lead in a few years to our eventual departure from the EU is entirely within the control of the British government, and there is every reason to delay the commencement of that process, notwithstanding the strongly expressed preference of some of our European partners that it should be fast-tracked.

I pointed out in an article a few months ago (Planning Law – the European dimension posted on Monday 7 March) that European law has only a marginal effect on our domestic planning laws, and is mainly focused on environmental issues. The environmental protection that this legislation gives to endangered species and their natural habitats is designed precisely in order to ensure that an appropriate level of environmental protection (especially for vulnerable species and their habitats) is maintained when considering development proposals. Our current subordinate legislation was drafted in compliance with the relevant European directives on these matters, but it is in any event based on sound and sensible principles, and I see no reason why we should wish to depart from those principles, whether or not the UK is a member of the EU. There is therefore no reason to repeal or amend the various statutory instruments that govern these matters, such as the Conservation of Habitats and Species Regulations 2010 and the Town and Country Planning (Environmental Impact Assessment)Regulations 2011 among others that are designed to ensure the appropriate protection of environmental interests.

As I have pointed out before, the European Convention on Human Rights, which is relevant in the context of planning law as it is in many other areas of our law and administrative procedures, has absolutely nothing to do with the EU or our membership of that organisation, and so this will continue to apply with full force and effect whether or not the UK is a member of the EU. The repeal or amendment of the Human Rights Act 1998 would therefore be neither necessary nor appropriate in connection with the UK’s departure from the EU. This is a separate issue that our right-wing Tory government seems to want to pursue, although government lawyers are finding it very difficult to come up with any viable alternative. There is, frankly, no reason at all to interfere in any way with the existing legislation or to seek to resile from our long-established adherence to the Convention, and to the principles that it enshrines.

There are other less tangible effects which last Thursday’s unexpected and unwelcome referendum result is likely to have in the coming months. The political turmoil that has ensued, and in particular the Tory leadership contest that is now to take place, will prolong the legislative and administrative paralysis that has afflicted several government departments since the referendum campaign began, leading to further uncertainty. I don’t propose to speculate as to the effect on house prices or on house-building, but there must now be a question mark over certain major infrastructure projects, such as the nuclear power station at Hinkley Point, the third runway at Heathrow and HS2. While mentioning infrastructure, there will clearly be no more European funding going to deprived areas such as the Welsh valleys or the North-east. Demands (or promises from the Brexiteers, which they are already denying) that Whitehall should fill the gap may prove to be a forlorn hope. It is ironic that it was these areas, which have benefited the most from European grant funding and would have continued to do so, that voted the most strongly in favour of leaving the EU. [It rather lends weight to one referendum poster I saw proclaiming “Vote Leave”, to which someone had added “ – if you’re stupid”.]

My main concern at the moment is to know whether De-CLoG will continue to make progress on its project to introduce further amendments to the GPDO, and in particular the amendment of Class O in Part 3 of the Second Schedule so as to permit the demolition and replacement of office buildings. They got the amendment to the 1990 Act in May which they needed to enable them to make the appropriate provisions in an amending statutory instrument, and so it would now be only political uncertainty or indecision in light of the Tory Party leadership contest that might prevent or delay this. Until last Friday, I had assumed that we would see this further amendment to the GPDO in September, coming into effect on 6 October. But now we shall just have to wait and see what happens.

We do indeed live in ‘interesting’ times.

[UPDATE 29.6.16: It has been announced today that the election of the new Tory leader (who will thereby become Prime Minister) will be completed by 2nd September. All ministerial posts will then be at the disposal of the new PM, and so a cabinet reshuffle can be expected over that first weekend in September. This is bound to affect the timing of any further amendments to the GPDO, unless De-CLoG rushes to make the intended amendment order by the end of August. An early General Election is also then a possibility, which could further delay any changes to subordinate legislation that have not been made by 2 September. So if the GPDO is not amended before the end of August, it is impossible to say when it might happen, if at all.]

[UPDATE 30.6.16: The deadline for completion of the Tory party leadership contest has been put back one week to 9 September, which means that any cabinet reshuffle will therefore be dealyed for one further week. Meanwhile a decision on a third runway at Heathrow has been put off until after that date (which could mean postponement to the end of the year, or maybe forever). Electricité de France say they are still committed to making a final decision by September on financing Hinkley Point C, but that does not necessarily mean a decision to go ahead with it. Meanwhile De-CLoG has confirmed that it intends to press on with various planning reforms, including the introduction of the Neighbourhood Planning and Infrastructure Bill in parliament. However, there must still be a question mark over the timing of these further planning changes, which may well be affected by the election of a new Tory leader, and if a General Election were to follow in the Autumn all bets would then be off.]



  1. I'm so bored and depressed by the whole business, and it's so distracting; I wish it would just go away.

    I'd be really curious to know your thoughts on the Hilton v DCLG case.

  2. The Hilton judgment is clearly a very important decision, but I have not yet managed to get my hands on a copy of the transcript. Two immediate thoughts occur to me. First, De-CLoG may well wish to take the case on to the Court of Appeal if they can. Secondly, if that fails, they may seek to amend Part 1 of the Second Schedule to the GPDO so that it means what they intended it to mean or thought it meant. In the meantime, there appears to be a window of opportunity (albeit one that could be cut short) to build larger domestic extensions than may originally have been envisaged.

    (Well, at least cases like this one may take our minds off the European debacle for a few minutes.)

  3. I read that they were refused leave to take the case to the Court of Appeal...

  4. Yes, I should have read through the Landmark Chambers email more thoroughly - but didn't have time (the usual problem!)



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