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Executive summary

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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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Context
Findings from the documentary analysis
Findings from the interview and focus group research
Conclusions

 

The June 2016 referendum result in favour of leaving the European Union (EU) has created a high level of openness about the future trajectory of many policy areas in the UK. The opportunities and risks are especially significant for the environment, given the profound effects of EU legislation on domestic policy and, in turn, for the way that environmental legislation interfaces with planning.

The question that guides this research is: how should the relationship between EU environmental legislation and the planning systems of the UK evolve, post Brexit? Can the relationship be improved, either by simplification or the identification of better ways of achieving environmental goals?

Thinking on this issue starts from a low base. Despite forty years of EU membership, the interface between European environmental legislation and planning has evolved piecemeal over 40 years, with little strategic reflection on how these two sets of institutions interact.

There is also urgency. Although the scope for making legislative changes will be affected by the kind of withdrawal agreements and trade deals that ultimately are struck, key aspects of domestic Brexit-driven legislation are being formed now – such as The Environment (Principles and Governance) Bill (2018) – with major implications for how environmental policy and planning intersect into the future.

The analysis presented here is based on two blocks of research:

  • Documentary analysis of the provisions of ten key EU environmental directives and how they connect to planning, along with assessment of commentary from government (e.g. red tape reviews), the planning profession (RTPI consultation responses to EU environmental directives) and wider research;
  • Interviews and focus groups with senior individuals involved in planning, from public, private and voluntary sectors, gathered from England, Northern Ireland, Scotland and Wales.

Context

To assess the relationship between EU environmental legislation and planning requires sensitivity to the following key issues:

  • EU environmental legislation sits within wider EU-UK relations, entailing other policy areas and policy mechanisms.
  • EU environmental legislation is embedded in UK domestic legislation, making teasing out the additional causal effect of EU legislation difficult. What gives EU environmental legislation its efficacy is the wider governance architecture for inter alia monitoring and enforcing implementation, which is also at risk with Brexit.
  • The merits of EU environmental legislation have been contested.
  • Planning and environmental policy are both highly devolved in the UK, creating different challenges for future development of the environment-planning interface across the four nations of the UK.

Findings from the documentary analysis

The interface between EU environmental directives and planning varies in form and intensity between Directives and environmental policy area. Planning is an aide to implementation for many directives (Ambient Air Quality Directive, Water Framework Directive, Waste Framework Directive), only becoming a prime delivery agent for Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) Directives, with the regulatory and strategic planning powers of the system also being important to the Habitats and Birds Directives.

EU environmental legislation, like planning, has been subjected to a pervasive discourse promoting 'cutting red tape' or streamlining. However, closer examination of government regulatory reviews and other materials reveals few specific ideas for change and the adoption of a very narrow, pro-business perspective. Most commentators have not been concerned with environmental efficacy.

The dominant tenor of the RTPI's consultation responses to EU environmental legislation is positive. The responses tend to press for ways to improve the environmental outcomes, sometimes vis-a-vis a minimalist, compliance-based approach adopted by government.

Such analysis might suggest that there is relatively little unexplored scope for change, post-Brexit. Equally, however, it may reflect the fact that most parties have assumed that EU membership and therefore compliance with EU legislation was the future and this has framed their thinking.

The wider research literature concludes that EU environmental legislation has delivered environmental improvements in the UK, and the benefits are especially clear for those Directives which institute clear goals and targets, and where in turn the European Commission the European Court of Justice can monitor and enforce implementation. Questions thus arise as to the merits of retaining or recreating these regulatory features post Brexit.

Existing research shows more debate about the effects of procedural measures like EIA and SEA, but numerous studies have concluded that these still generate positive environmental improvements to projects and plans (albeit often relatively minor), and can provide greater transparency and accountability in decision-making.

Of course, EU environmental legislation has encountered a host of problems in realising all of its goals. What research also shows is that it is difficult to separate the effects of EU environmental legislation in a narrow, formal sense from a wider set of social and political factors affecting (i) how the legislation is interpreted and transposed by national government and (ii) how, in turn, European and national requirements are interpreted and applied in planning practice.

Given this, Brexit might be best viewed as an opportunity to address wider issues around the interface between environment and planning in the UK, including those with home-grown causes.

Findings from the interview and focus group research

Most respondents were firmly of the view that EU membership had underpinned significant improvements in environmental quality and raised levels of environmental protection. They appreciated particular qualities of EU legislation, such as its purposive nature, the (generally) clear objectives and targets, its durability and detachment from short-termist political pressures, and the way that it underpinned consistent practices.

There was more diversity of view and equivocation on the effects of specific procedures, with EIA and SEA attracting much discussion. Perceptions that procedures could be bureaucratic, complex, disproportionate and costly were commonly expressed, linked to concerns that positive outcomes were not always obvious.

Nevertheless, few respondents linked the difficulties they experienced to ways of changing EU-derived legislation post-Brexit. Other factors, like the lack of resources or experienced staff in planning authorities or other bodies, could greatly affect the efficacy and efficiency with which environmental measures supported planning and vice versa.

Respondents were invited to offer views on a number of scenarios, each outlining a direction in which the interface between EU environmental legislation and planning could evolve, post-Brexit. Overall, respondents were:

  • very positive about a scenario in which firm environmental goals and standards were retained, and the role of planning in delivering on them was enhanced;
  • almost equally positive about a scenario which gave local and national actors more flexibility in the means by which those goals were achieved;
  • highly negative about scenarios that allowed more scope for goals to be softened, or derogations to be made, at the discretion of local and national decision-makers.

Another key message from the interviews and focus groups is that the prospects for the future looked very different across the constituent nations of the UK. In Northern Ireland, there were stark concerns that any loss of EU environmental protections risked deepening what was already a major environmental governance gap. In Wales and Scotland, alignment with EU standards post-Brexit received strong political support, and steps had already been taken through domestic reforms to align planning with environmental outcome goals.

Conclusions

Our research did not identify major, explicit pressure for change to EU environmental legislation and the way that it interfaced with planning. Indeed, respondents expressed some desire for short-term regulatory continuity while the uncertainties of the Brexit process play themselves out.

However, events are already unfolding which affect the future interface with planning. Moves to institute environmental principles in domestic legislation, to create new environmental watchdog(s) to replace the monitoring and enforcement functions of the EU, and the substantive environmental goals of (in England) the 25 Year Environmental Plan could push towards a more EU-style, goal-focused system of environmental governance as the UK leaves the EU.

What is very much up for grabs is whether and how far planning is incorporated within this emerging system, or whether Brexit leads to an extension of traditional, more discretionary regulatory styles to areas of environmental concerns formerly governed by EU legislation.

To assist in structuring the debates that will ensue, the research offers two heuristic tools.

  • One focuses on what is causing problems at the planning-environment interface – is it EU legislation, domestic transposition, or implementation in the field?
  • The second pulls together issues relevant to any moves to simplify EU-derived environmental legislation, by asking: how precautionary should we be?; who decides?; what are the checks and balances?; what are the merits of a consistent framework?

 

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