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5.0 Conclusions

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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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5.1 Is there pressure for change?
5.2 How should we think about the case for change?
5.3 What is the strategic vision?
5.4 Beware of over-extrapolation
5.5 Issues for further investigation

 

The subject matter addressed in this paper – the scope for and desirability of making changes to the relationship between planning and EU-derived environmental policy – is doubtless one that will be revisited again in future. This study, designed as it was to provide an overview, can only touch on issues that merit examination in further detail. Nevertheless, the sections below outline a series of conclusions, and also offer some heuristic tools to support structured investigation of the issues involved.

5.1 Is there pressure for change?

Although there is a lengthy and sometimes messy frontier between EU environmental directives and domestic planning legislation, our research did not identify major, explicit pressure for change. Indeed, respondents did not identify issues emanating from EU environmental legislation that needed addressing urgently. Indeed, there was some desire for at least short-term regulatory continuity while the uncertainties of the Brexit process play themselves out.

This deduction comes with warnings. It assumes that future pressures for streamlining (or tightening) of regulations emanates from clear, explicit position statements, which may simply not be the case, especially in turbulent times. Politicians and organisations promoting visions of Brexit based on 'free markets' and escaping alignment with EU regulations have largely refrained from arguing for specific reforms, but they are applying pressure just the same. Moreover, for all that (at the time of writing) it is unclear how the Brexit process may end, the UK  and devolved governments are already introducing measures to institute environmental principles and create new environmental watchdogs that will affect the form of future environmental governance arrangements. For all these reasons, it remains advisable for the planning profession to form clear views and be prepared to engage with the Brexit process.

5.2 How should we think about the case for change?

Our research shows that the scope for improvements or any simplification in how planning supports EU-derived environmental goals cannot be readily derived from a technical assessment of duplication. This is partly because most environmental directives do not interface with planning in ways which would generate duplication of means; many are concerned with ends (targets, standards), usually determined outwith planning.  The nature of EU legislation as directives, which confer on member states the scope to choose their means of compliance, should also militate against duplication. Interesting arguments have been made that certain procedures like EIA, rooted in EU Directives, could be attained directly through planning legislation – a point to which we return.

A related point is that judgements of how EU environmental directives and planning work together cannot be purely technical, since positions tend to relate to a series of value judgements: about costs and benefits, their extent and what constitutes a cost or benefit, and on whom they should fall. In some cases they are hard to detach from wider value judgements about the extent to which the location, form and design of development should be moulded to observe environmental constraints. Our research has shown that two sets of questions can apply useful to judgements about the potential for change.

One set is about the fuzziness of causation, since our research has shown that – when you examine what planning professionals may find problematic about applying EU Directives – the cause is rarely easily attributable to the particular terms of EU legislation, guidance or legal judgements i.e. to those things that are specifically likely to have less force post-Brexit. As summarised in Heuristic 1, many of the causal effects may be essentially about the domestic context; Brexit is an opportunity for a re-think, but not in itself a necessity for changes to be made.

Heuristic 1: What causes problems with environmental planning?

Heuristic Planning

The issues contained within the three concentric ovals can of course be related, and we make no judgement about the factors in themselves, but they provide a set of questions that can reasonably be asked in a situation of prospective change.

The second set of questions is about the benefits and risks arising from changes that might simplify or reduce the requirements made of EU-derived legislation (for example the ambit of EIA). The idea that agreed goals should be achieved by means that are as simple, legitimate and transparent as possible consistent with effectiveness obviously commands wide assent. However, our research also provides a reminder of the potential risks involved. Heuristic 2 distils what are likely to be the key axes of debate, post-Brexit, representing them as key questions. They are relevant to a number of policy areas.

Heuristic 2: Should we simplify environmental legislation? Axes of debate

 

Question

Precaution

How much information do we need, how good does the evidence need to be, in order to make a particular planning decision?

Dealing with the small

As a particular instance of the above, how do we judge that a risk or possible impact is likely to be sufficiently small such that a closer investigation or regulatory constraint is inappropriate?

Who decides

In respect of the above questions, who has the discretion to make such decisions and how much discretion should they have?

Checks and balances

Can the discretion of the decision-maker above be challenged, if so on what terms and basis?

Consistency

Is the creation of a consistent framework beneficial, for (i) ensuring minimum levels of performance from local planning authorities and developers, or (ii) dealing with cross-boundary issues?

Issues of the type above permeated the interviews and focus groups, from questioning whether more impacts could be scoped out of EIA to whether developments that make negligible effects on European wildlife sites should be subject to the stringent tests of public interest. One should expect them to emerge in future, post-Brexit. Moreover, Brexit has itself brought many aspects of these questions centre stage. For example: the precautionary principle is among the EU environmental principles being considered for inclusion in English legislation. Brexit has triggered debate and action around the creation of new environmental bodies and their capacity to keep governments to their obligations. There is also interest in how the Aarhus convention gets written into domestic legislation and how its obligations are interpreted (TCPA 2018).

5.3 What is the strategic vision?

Our research explored numerous areas where the relationship between planning and EU-derived environmental legislation might be improved, through integration or simplification. However, many of them could be advanced without Brexit, and our research affirmed the view that what makes EU environmental legislation distinctive and effective is less the details of the legislation than a number of overarching qualities and the wider environmental governance architecture in which they sit (Burns et al 2016). Arguably, then, thinking about the scope for improving the relationship between planning and environmental legislation post-Brexit should look beyond a wish-list of atomistic tweaks, but rather engage explicitly in debate about the overall strategic direction for the way environmental issues are addressed in planning.

Our research sought feedback on a number of scenarios, but found positive interest in scenarios that entailed re-creating the best features of EU environmental governance, in the sense of:

  • Pursuing a set of formal and ambitious environmental goals, targets and standards, linked to clear time frames, against which implementation could be monitored and, if required, enforced.
  • With this, retaining and reinforcing the status of environmental goals in the making of development plans and development decisions.

The implication of this scenario is that, as the UK leaves the EU, careful consideration should be given to maintaining key, positive qualities of EU environmental legislation (its tendency to be formalistic, regulatory and governed through arms-length mechanisms), rather than see environmental legislation become more like UK planning legislation, which tends to be more discretionary, with shorter, political lines of accountability.

Such a scenario may already be beginning to emerge, in elements of the government's 25 Year Environment Plan for England (HM Government 2018), in new environmental watchdog bodies, and in the use of purposive introductory statements in recent new planning legislation in Wales and links to statutory purposes. Nevertheless, there is much to be discussed right now, at the time of writing, as to how far these new measures should be applied to embrace environmental aspects of planning (Ricketts 2018; TCPA 2018). Moreover, there are challenges entailed by such a scenario, in asserting the importance of environmental goals in a planning system attuned to balance and treating each case on its merits, and in the implications for traditional UK styles of legal judgement (Reid 2012).

Some of the governance qualities of EU environmental directives may apply with equal relevance to the social sphere. So, insofar as there may sometimes be concerns that issues of housing need are not subjected to equal standing to particular environmental conservation concerns, the solution need not necessarily be to weaken ostensibly competing environmental requirements but to give genuine social needs greater status. The Raynsford Review of planning in England (TCPA 2018) engaged with this issue, but there is a wider agenda of 'social floors' that set the safe space for human flourishing (Raworth 2012).

The research conducted for this study showed many professionals in the built environment to be happier with decision-making processes that remain robust on outcomes but rely less on policing procedural compliance. As a corollary, our research found broad support from across the planning profession for greater flexibility in the means by which environmental goals are to be attained. Such a scenario also has relevance to Brexit. Where 'leave' scenarios require some form ongoing commonality with EU regulations, the requirement is very often couched in terms of equivalent levels of protection, much less on procedural consistency with EU legislation.

5.4 Beware of over-extrapolation

This may seem a strange point to follow on from a call to think strategically, but in contemplating the merits of potential changes care needs to be taken in how one extrapolates from specific problems or concerns to the advocacy of change to the wider policy and legislative system. Context-specificity matters, in a number of respects.

  1. Devolution to UK nations 

    Most obviously, concerns expressed about the relationship between planning and EU environmental directives may vary between parts of the UK and – even if certain generic concerns tend to recur – the devolved governments have already been, and show every sign of continuing, to mould this relationship in ways which fit domestic political priorities or beliefs about institutional design. In Northern Ireland, the substantive fate of environmental governance per se, is an object of considerable concern given the collapsed state of devolved government.

  2. Project scale 

    As most seasoned planning commentators will know, concerns readily circulated about the performance of planning may not necessarily apply to all or even a majority of planning applications or categories of development. For this research project, respondents expressed the view that it is major projects that are most often affected by the greatest number of EU Directives, and whose proponents may be most affected by any future institutional change.  However, with nationally significant infrastructure projects, there is often already government interest in actions that smooth the interface with particular EU environmental requirements (HM Government 2012).

  3. Leaping from problem to policy and principle

    Environment-development tensions often have different qualities in different situations, and we should pause before leaping from specific situations to arguments for modifying legislation (say the strength of protection). So for example, there may be valued wildlife species or habitats that have ecological requirements which are unusually likely to intersect with the geographical requirements for necessary development (think Great-crested Newts or heathland in southern England). In such situations it may be appropriate to think of problem-specific ways of operationalising solutions that can best bridge conservation and development requirements. However, there is a need for much greater caution in leaping from particular problematic situations to arguments for changing conservation policy across the board.

5.5 Issues for further investigation

Inevitably, the particular focus and approach of our study means that there are issues which have not been given adequate attention, but could be the basis of further study.

Environmental Impact Assessment

This study was designed to cover and assess ten main EU Directives, which meant inevitably that those directives that attracted greatest interest often generated questions that could not be fully addressed.  EIA is the main directive to which this applies. For many respondents it  symbolises 'EU environmental legislation', and it was subjected to some very major claims. For example that it does nothing not already done by the planning system, or that other EU member states have found ways to make EIA 'easier' than the UK. We do not necessarily support these observations, but there is a case for using Brexit as an opportunity review the UK's experience with EIA vis a vis other EU member states; to do so with a wider evaluative remit than government's 'red tape review', and acknowledge a wider range of affected parties other than just 'developers as customers' of planning (RCEP 2002); to situate EIA within wider flows of environmental knowledge within the planning systems and how it comes to inform policy, decisions and assessments of performance; and to consider how the value of EIA may be enhanced  if situated within an environmental governance framework, including planning, that gives greater attention to goals and targets.

Planning, environment and agriculture

The scope for this research has been set by a suite of environmental directives (IEEP 2018), but also (implicitly) by a particular, present-day interpretation of planning. While this has made the research tractable, it has had some limiting effects, notably in relation to agricultural policy. One of the prime areas of potential future policy creativity, post-Brexit, is in agriculture and the replacement of the Common Agricultural Policy: concerning both the kind of public support that agriculture receives and the wider regulatory framework in which it operates. Although the role of town and country planning in agricultural operations has been modest, moves to a UK policy environment in which public money is spent on delivering public goods – rather than supporting production – should inevitably raise questions about whether (i) such money might be better spent with regard to a coherent spatial vision for the landscape, and (ii) whether further value may be gained for public funding if the balance of permitted development rights around agriculture and forestry are reviewed. Holistic environment-landscape agendas emanating from Westminster and other governments (e.g. biodiversity net gain [HM Government 2018]) also suggest a less sectoral policy context, in which the environment-agriculture-planning interface becomes important.

Towards more integrated environmental planning

One of the ideas that pervades the subject of this research is the idea that there should be 'more integration' between planning and environment, often attached to the idea of some form of more integrated planning that would be both simpler (reducing the need for multiple plans of a spatial/environmental nature) while remaining effective. Knowing the problems with this, and the hesitancy of previous much larger studies (RCEP 2002), investigating the idea in any detail has been beyond this piece of work. However, at the time of writing it seems plausible that domestic agendas for England emerging from the 25 Year Environment Plan may push towards greater integration in the way that planning and environmental protection are conducted. And while Brexit is not required for this to happen, it may well be that this is an arena in which the merits of two styles of governance – the one more formal, regulatory, with implementation better supported and policed (reflecting the effects of EU membership); the other more discretionary (drawing on domestic traditions) – will come into close conjunction. Herein lies a grounded setting for examining more closely the merits of the broader scenarios outlined in this research.

 

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