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2.0 Understanding the problem

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Cowell, R., Ellis, G., Fischer, T., Sykes, O. and Jackson, T. (2019), Environmental planning after Brexit: working with the legacy of EU environmental directives, Royal Town Planning Institute.


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2.1 Introduction
2.2 Environment legislation within EU-UK planning relations
2.3 Understanding additionality and causality
2.4 Contestation
2.5 Devolution to National Governments within the UK
2.6 Conclusions

 

2.1 Introduction

It would be tempting to regard the relationship between the planning system and EU-derived environmental legislation as a technical matter, explicable by a mechanical reading of relevant law, and to treat assessment of the opportunities for positive change in a similarly mechanistic manner. In practice, this research has been sensitive to:

  • the need to situate the specific focus of this study within wider EU-UK relations around planning and EU environmental governance architecture;
  • the need for nuance in teasing out the additional and causal effects of EU legislation;
  • contestation about how EU environmental legislation effects the UK and planning, and the merits of its effects;
  • the need to recognise that within the UK both planning and environment are substantially devolved policy areas.

2.2 Environment legislation within EU-UK planning relations

The body of EU environmental legislation (acquis) has developed and evolved significantly since the 1980s, many elements of which have important connections to the planning system (see Cowell and Owens 2016; Wilson 2009). Previous research for the RTPI (IEEP 2018) identified the following ten directives as especially relevant to planning, and it is these that have been adopted as the main focus of this research:

The Environmental Impact Assessment Directive (2011/92/EU, as amended)

The Strategic Environmental Assessment Directive (2001/42/EC)

The Habitats Directive (92/43/EEC)

The Birds Directives (2009/147/EC)

The Water Framework Directive (2000/60/EC)

The Ambient Air Quality Directive (2008/50/EC)

The Urban Waste Water Treatment Directive (91/271/EEC)

The Waste Framework Directive (2008/98/EC)

The Marine Strategy Framework Directive (2008/56/EC)

The Maritime Spatial Planning Directive (2014/89/EU)

There are other pieces of EU environmental legislation that also have implications for planning. For example the Renewable Energy Directive (2009/28/EC), which has underpinned UK renewable energy targets; the Seveso Directive III on the control of major accident hazards involving dangerous substances (2012/18/EU), which can affect the siting of development; the Energy Performance of Buildings Directive (2010/31/EU) and the Energy Efficiency Directive (2012/27/EU); and the Environmental Noise Directive (2002/49/EC), requiring creation of noise mappings and action plans in urban areas.

However, environmental legislation is just one part of the EU's policy toolkit and just one sphere in which the EU membership has shaped planning in the UK (Bishop et al 2000, 309; Haigh 1989; Morphet 2017; Rydin 2003; Tewdwr-Jones and Williams 2001).Through action at EU level, member states have jointly sought to address spatially uneven territorial development across European territory (Jackson and Roberts 2000). As well as the structural funds, EU funding schemes have supported cross-border planning initiatives and the cross-community coordination and collection of spatial data. EU arenas and initiatives have provided venues for the sharing of best practice on planning and environmental matters. Other funding mechanisms such as the LIFE programme have been available to support the delivery of environmental goals; much valued in the wider UK context of public sector austerity. All of these, too, face a highly uncertain future after Brexit, with diverse implications for planning practice.

2.3 Understanding additionality and causality

Understanding the net effect of EU environmental legislation on outputs and outcomes in the UK requires careful interpretation. In many areas of environmental policy (including planning), the UK already had some institutional arrangements in operation, so the question is working out the additionality of EU action vis a vis domestic approaches (Hilson 2018). Over time EU legislation has become embedded in UK environmental and planning legislation, such that "you cannot flick through the statute book and see immediately which provisions come from the EU and which are home grown" (Reid 2016, 143).

In addition, understanding the efficacy of EU action requires attention not just to the individual laws but also the wider 'governance architecture' created by the EU. A defining feature of the EU environmental acquis is that legislation is backed up by mechanisms for monitoring progress, pursuing implementation deficits and, if required, taking enforcement action against member states, delivered by the European Commission, the EU Court of Justice (ECJ), and a host of other, specialist bodies (Broadway Initiative 2018). This machinery has promoted progress reporting, challenged slippage, held governments to account and cultivated policy learning (see Burns et al 2016; Hilson 2018; Reid 2016). EU environmental action and also draw on a series of legally enshrined principles, such as prevention, polluter pays, rectification at source and the precautionary principle (Treaty on the Functioning of the EU, Article 191). Part of the shifting policy context on which this study was conducted are the various UK government initiatives underway to replace elements of this governance architecture, such as the creation of a new environmental watchdog (DEFRA 2018) or watchdogs (Scottish Government 2018).[1]

The need for the UK to remain compliant with international environmental conventions will quite likely constrain the scope for policy change, post-Brexit (UKELA 2017; Hilson 2018). Examples include the Bern and Ramsar Conventions (on wildlife conservation), the Basel Convention (on international waste shipments), the Espoo Convention on transboundary environmental impact assessment, and the Aarhus Convention (on access to justice and information on environmental matters).  The UK Government has expressed a desire to remain compliant with international environmental convention as we leave the EU. However, most international conventions are less detailed in their requirements than EU Directives and do not entail the powerful mechanisms for securing implementation and enforcement available to the EU (UKELA 2017).

2.4 Contestation

Any effort to evaluate the effects and effectiveness of EU environmental legislation in its relationship to planning must recognise that the merits of such EU intervention have been contested (see discussed in Burns et al 2016).

Some of this contestation surrounds the extent and unevenness of any beneficial substantive effects. It is widely acknowledged that EU environmental policy has been pivotal in improving many aspects of environmental quality in the UK, rescuing it from the 1980s status of the 'dirty man of Europe' (Burns et al 2016; IEEP 2013).However, the improvements have not been uniform across all policy areas.

Regardless of the substantive effects on levels of environmental protection, EU environmental action can be subjected to various deregulatory arguments, which question the balances struck between environmental protection and other objectives, such as housing delivery and affordability, growth or competitiveness.

Disputes about sovereignty are another axis of disagreement, also amplified by Brexit. Who controls the policy process? Who says what the standards should be or how trade-offs should be struck? Depending on the stance taken, EU obligations may be seen as a useful aide to environmental improvement or a problematic containment of domestic freedom.

2.5 Devolution to National Governments within the UK

Devolution matters greatly to the subject under investigation. Within the UK, planning is a function devolved to the governments of Northern Ireland, Scotland and Wales, and many aspects of environmental policy are also substantially devolved. This has allowed each government to develop planning policies and interpret EU legislation in different ways. EU legislation has set overall frameworks that contain this divergence but, post-Brexit, any responsibility for developing 'Common Frameworks' falls back to domestic legislators (see discussion in Burns et al 2018).  Devolution also matters because key actors and policy communities in the devolved nations may attach different priorities to the way that Brexit should be dealt with. In a number of spheres, the Welsh and Scottish governments have pursued environmental policies that are more ambitious than Westminster. Both were quick to express concern about the environmental risks of Brexit, upholding or improving on EU environmental standards is a key part of their position (Burns et al 2018), while in Northern Ireland devolved institutions have been in collapse through the course of this work. As a consequence, it is important to avoid implying that there is single 'UK' agenda for change for planning and the EU environmental directives, even though there are some issues that are common across the UK.

2.6 Conclusions

The above considerations have to be borne in mind when considering how the relationship between EU-derived environmental legislation and the planning systems of the UK should evolve, post-Brexit. As is also clear, the issues at stake are value laden and value judgements cannot be avoided. Such considerations are taken forward in the next section, where the intersection between EU environmental directives and planning are mapped, and views of their efficacy assessed.

 

[1] RTPI has previously commented on the merits of cross-UK frameworks, see http://bit.ly/rtpi-brexit-devo

 

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