14 July 2016

The most immediate effect of Brexit on planning is the potential slowdown in development coming forward as a result of wider economic considerations. With the exception of the Heathrow delay, government infrastructure projects appear to be proceeding, with an express effort to make this clear.

It is reasonable to assume that the government’s approach to planning will be pragmatic. First, the government is likely to pursue further any changes to the planning regime which it believes will promote development and investment. There have been numerous changes to permitted development in recent years in line with this agenda. A revival of the recently repealed mechanism for reviewing unaffordable housing obligations is a credible possibility. A review of CIL and other measures may be on the cards in due course.

Second, it is likely that the vast majority of the planning system will proceed on a ‘business as usual’ basis during the exit period and beyond. This is because the UK is very committed to having a planning system and because the vast majority of the legislation that has been enacted within the various domestic legal jurisdictions does not rely on direct EU regulations.

An overarching issue is whether or not the terms of whatever new deal the UK enters into with the EU will require the UK to comply with EU directives and regulations, and the judgments of the ECJ, on an ongoing basis, as is the case with Norway and Switzerland. On the assumption that this will not be the case, in relation to EIA, it is hard to see a significant move away from this key aspect of the planning regime during exit or afterwards. Interestingly, DCLG has already stated publicly that it still intends to bring in the new EIA Directive which must be in force for May 2017. However, in due course the status of ECJ case law judgments will have to be clarified.

The UK is a signatory in its own right to the Aarhus Convention on access to environmental information, participation in decision making and the review of decisions. Again, it is reasonable to assume the UK will want to maintain its commitment to this convention.

Air quality is an area where the UK is already in breach of the key directive, and is in difficulty in securing compliance. It is an increasing issue on a range of planning decisions, including Heathrow. There must a real temptation on the government to take advantage of the impending EU exit to reconsider its approach in the near term.

Finally, whilst it is not yet clear what formal stance the European Commission is taking on live complaints and infraction proceedings, it is hard to see new proceedings being initiated. The threat of such proceedings has been a significant matter in the operation of the UK planning system, with real implications for different sectors. In a similar vein, there must be a rather strange shadow cast over live proceedings in the ECJ and the approach to initiating new such proceedings.

For more information on current issues in planning and development, please take a look at our newsletter Planning and CPO – Summer 2016.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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