Brexit. Planning & environment implications for commercial & residential development in England Q&A

Transcription

1 Brexit Planning & environment implications for commercial & residential development in England Q&A

2 Q1 What will happen to the EIA Regulations in relation to commercial and residential development? Will the new EIA Directive have to be transposed into UK law by May 2017 even now there has been a Brexit vote? (a) Between now and Brexit Until the UK leaves the EU, there are not expected to be any changes to the EIA Regulations save for business as usual changes. These will be significant however as the EIA Directive has recently been amended at European level (2014/52/EU) and has come into force. Ordinarily, the amended EIA Directive should be transposed into UK legislation by 16 May This is well before the likely end of the Article 50 process for the UK to leave the EU, unless confirmation is given by the EU that this is not required. If we chose to proceed with the implementation notwithstanding the negotiations, the key changes which will need to be transposed into UK legislation, are set out in the box below. Until we have more clarity on the exit negotiations, it is advisable that you work on the basis that the changes will be implemented. This includes in relation to new planning applications, S73 applications and applications for reserved matters approval. (b) Post-Brexit Once the UK has left the EU, unless the UK enters into the European Economic Area (EEA), the EIA Directive will no longer have direct effect. However, the UK has transposed the EIA Directive into English law via various EIA Regulations. Like most of the secondary regulations implementing Directives, these EIA Regulations are made under the European Communities (EC) Act If this EC Act is repealed, it is likely that saving provisions would apply to allow for the continuation in force of secondary legislation already in existence, such as the EIA Regulations. This would then allow time for any potential changes to be considered. The EIA Directive applies to those countries within the EEA. So if the UK negotiated entry into the EEA, the EIA Directive would still apply to the UK and the EIA Regulations would be unlikely to change given compliance with the EIA Directive would still be required. In the longer term, in relation to new planning applications and ongoing EIA of multi-phase schemes, e.g. at reserved matters stage, later phases could potentially be affected by any changes in the EIA Regulations which may occur. Potential changes which may be contemplated could include adjustment in the thresholds and scope of EIAs or whether there is any need to carry out EIA at reserved matters stage. Most advanced countries have a form of environmental impact assessment so withdrawal from the EU is unlikely to mean the abolition of the EIA concept as part of any attempt at deregulation in the UK. This is also informed by the desirability of EIA to avoid breaches of domestic legislation such as the Wildlife and Countryside Act 1981 and the Hedgerow Regulations 1997, together with adherence to international lender Equator Principles and the need to adhere to a number of international conventions which the UK is a party to including: 1971 Ramsar Convention on Wetlands of International Importance 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals 1979 Geneva Convention on Long-range Transboundary Air Pollution 1991 UNECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1992 OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic 1992 Brazil Convention on Biological Diversity How the EIA regime is taken forward should therefore be kept under review. (c) Any benefits from Brexit? As indicated above, should the UK exit model involve being a member of the EEA, then it is unlikely that we will see any benefits of change given the UK would have to comply with the EIA Directive (arguably this is a worse position, as the UK would simply have to adopt EU legislation whilst not being able to influence it). 02

3 Brexit Planning & environment implications for commercial & residential development in England Q&A Should the UK exit model involve sitting outside the EEA, then the UK will have greater flexibility to determine how it wishes to carry out EIA of projects. Some commentators are concerned this may lead to a watering down of environmental assessment and hence protection whilst others see benefit in having more flexibility. An additional benefit of greater flexibility and any potential adjustment to the EIA Regulations post-brexit may be in relation to the Government s Permission in Principle (PIP) proposals as set out in the Housing and Planning Act There has been some concern that PIP by allocation in a local plan or local register would need to be accompanied by an EIA but, since undertaking an EIA is considered relatively onerous/ expensive at allocation stage, that may have significantly restricted the use of PIP by allocation. The freedom to make adjustments to the EIA Regulations post-brexit may well provide an opportunity to clarify whether an EIA is needed for a development allocation to receive PIP. New EIA Directive changes Screening: Information to be supplied to the LPA as part of a request for a screening opinion will become more comprehensive. Supporting information will be required on the use of natural resources, waste production, and on likely impacts of the proposed project on a number of new topic areas (see below). Information may also be provided on any integrated design measures and mitigation proposed to avoid or reduce impacts, to enable these to be taken into account in the screening decision. Scoping: Scoping remains voluntary. However, if a scoping opinion is requested, there will now be a requirement to base the EIA on the scoping opinion received. If a project is scoped before the amended UK Regulations come into force in May 2017, the application will be processed in accordance with the current EIA regime. Topic Areas for EIA: A number of new environmental topics will require consideration at all EIA stages (including screening and scoping) including biodiversity, climate, land and human health. Predicted effects resulting from the vulnerability of the project to major accidents or disasters will also need to be considered. Project description: The project description will be expressly required to include demolition works, where relevant. It will also be a requirement to describe the quantities and types of construction waste which will be generated. Baseline scenario: A baseline scenario is included as part of the EIA providing a description of the current state of the environment. There is a new requirement to outline the likely evolution of that baseline scenario in the absence of the development, as far as changes can be assessed with reasonable effort on the basis of available information and scientific knowledge. Assessment of effects: Main uncertainties associated with forecasting methods must now be described. Cumulative effects to be taken into account will be those arising from the proposed development plus impacts from other existing and/ or approved developments. There continues to be no express requirement to include developments going through the planning process when considering cumulative effects. Assessment of reasonable alternatives: The definition of reasonable alternatives to be considered in the assessment has been expanded to include alternatives associated with project design, technology, location, size and scale. Reporting outputs: The findings of the EIA will be presented in an EIA Report and not in an Environmental Statement. Monitoring requirements: Monitoring of any significant adverse effects, identified after mitigation, will be required to ensure the implementation of mitigation measures and to measure their effectiveness. This includes measures to identify unforeseen significant adverse effects. Use of competent experts : The EIA Report will need to be prepared by competent experts and determining authorities will have to ensure that they have, or have access to, sufficient expertise to examine the EIA Report. IEMA s EIA Quality Mark registration scheme may satisfy these requirements. Q2 What will happen to the Habitats Regulations and associated Special Areas of Conservation and Special Areas of Protection i.e. Natura 2000 European Protected Areas? (a) Between now and Brexit The Habitats Directive and the Wild Birds Directive are the main EU pieces of environmental legislation relating to the protection of habitats in the UK which have an effect on commercial and residential planning. These Directives require Member States to contribute to a coherent European ecological network by designating: Special Areas of Conservation (SAC s) for habitats and species listed in the Habitats Directive; and Special Areas of Protection (SPA s) for habitats classified under the Wild Birds Directive. 03

4 For sector specific updates and further insights see Development that is likely to impact the integrity of these areas is either prohibited or can only proceed where there is a clear national overriding imperative. The Habitats Directive has been transposed into UK law via the Conservation of Habitats and Species Regulations As with the EIA Regulations above, this legislation would continue to apply after Brexit (assuming relevant saving provisions are applied in any repeal of the European Communities Act 1972) until changed by the UK Parliament. (b) Post-Brexit Unlike the EIA Directive, the Habitats Directive and the Wild Birds Directive do not apply within the EEA. Therefore even if the UK negotiated membership of the EEA, the UK would still not be bound by the Directives and could, if it wished, amend or withdraw the relevant domestic legislation. As with the EIA regime, the desire to ensure habitat and species protection, and to adhere to international conventions and the Equator Principles, may mean that most of the Conservation of Habitats and Species Regulations 2010 are retained irrespective of not being bound by the related EU Directives. However, in relation to these two Directives, the UK Government has expressed some frustration with some of the limitations that the Directives have placed on particular developments. For example, in the infrastructure arena, DEFRA s Progress on implementation of the Habitats Directive Implementation Review found that implementation of the Directives stifled the ability to develop nationally significant infrastructure. Therefore, it is possible that Brexit may lead the Government to consider relaxing some of the provisions of the implementing regulations for the Directives. This could benefit the development of some commercial and residential development, as well as infrastructure, affecting proposed and current Natura 2000 sites. (c) Any benefits from Brexit? Post-Brexit, the UK will have greater flexibility to determine how it wishes to protect habitats and birds. Some commentators are concerned this may lead to a watering down of protection whilst many others see benefit in having more flexibility. recreation as an alternative to, for example, the Thames Basin Heaths SPA, thereby avoiding harm to the SPA. The availability/ location, cost and effectiveness of SANGs sites is an area which may well come under scrutiny if, post Brexit, the Habitats Regulations and associated guidance are re-examined. There may be an opportunity for dialogue with Natural England in this respect. Q3 What will happen to Ramsar Sites and SSSI s? There are unlikely to be any significant changes resulting from Brexit given that Ramsar sites are designated under the 1971 Ramsar Convention on Wetlands of International Importance. This came into force in December 1975 and was ratified by the UK in The Convention has three main pillars of protection and activity: the designation of wetlands of international importance as Ramsar sites; the promotion of the wise-use of all wetlands in the territory of each country; and international co-operation with other countries to further the wise-use of wetlands and their resources. The Convention s signatories assumed a wide range of related obligations. The UK has generally chosen to underpin the designation of its Ramsar sites through prior notification of these areas as Sites of Special Scientific Interest (SSSI s). Accordingly, these receive statutory protection under the Wildlife and Countryside Act The Government has issued policy statements relating to the special status of Ramsar sites. This extends the same protection at a policy level to listed Ramsar sites in respect of new development as that afforded to sites which have been designated under the Birds and Habitats Directives as part of the EU Natura 2000 network. Therefore, the position on Ramsar sites is not likely to significantly change post-brexit, unless the Government moves to revise the Conservation of Habitats and Species Regulations We predict that the Conservation of Habitats and Species Regulations 2010 is one piece of legislation which may come under scrutiny for amendment to provide more flexibility in any deregulatory agenda environment. One area which will be under scrutiny for developers in the South East is the continued need for SANGs sites, which are driven by the Habitats Regulations. SANG sites provide a group of existing open spaces that undergo enhancements designed to attract more visitors by providing an enjoyable natural environment for 04

5 Brexit Planning & environment implications for commercial & residential development in England Q&A Q4 What will happen to Strategic Environmental Assessment (SEA) of Local Plans and other plans and programmes? This is similar to the position with EIA, i.e. no change until Brexit occurs and the UK sits outside the EEA, when the UK Government will have flexibility to make amendments if it wishes to do so. However, similar to the EIA regime, most advanced countries have a form of SEA so withdrawal from the EU is unlikely to mean the abolition of the SEA concept completely as part of any attempt at deregulation in the UK. In addition, the same considerations which apply to the EIA regime also apply to the SEA regime, i.e. wishing to avoid breaches of domestic legislation such as the Wildlife and Countryside Act 1981 and the Hedgerow Regulations 1997, plus adherence to international lender Equator Principles and to the international conventions to which the UK is a party. Arguably, however, the SEA regime is more at risk of significant amendment in any deregulatory agenda the Government may wish to proceed with, compared to the EIA regime, given that there is a layer of environmental protection provided by the designation of specific sites and also the carrying out of EIA at a project level. There has certainly been some concern that the process of SEA is not always of much significant benefit in the production of a plan or programme or always good value for money. There may well be a desire in any event to exempt some lower order plans or programmes e.g. neighbourhood plans, from SEA. Q5 What will happen in respect of the freedom of information legislation and environmental information regulations in the context of public participation in planning and environment decision-making? The Freedom of Information Act 2000 is a purely domestic creation, implementing a 1997 Labour Party manifesto commitment. As such, it will remain unaffected by Brexit. However, in relation to the Environmental Information Regulations 2004 (EIR), these implement the European Council Directive 2003/4/CE on public access to environmental information and also help adhere to the EU Charter of Fundamental Rights which includes access to information. The EU Directive has as its source the 1998 International Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, known as the Aarhus Convention. This came into force on 30 October The position therefore, in relation to the EIR, is that when the European Communities Act 1972 is repealed, it is likely that there will be saving provisions to allow continuation of the EIR. This would allow time for any potential changes to be considered. However, due to the need to comply with the Aarhus Convention, the EIR are likely to be retained, though the need for any changes may well be scrutinized, particularly in relation to the extent to which viability appraisals in the development context are considered commercially confidential and should not be disclosed. 05

6 For sector specific updates and further insights see Q6 Will there be any impact from the Brexit vote on anticipated English planning legislation, policy or guidance? Not directly but the Brexit process could clearly be a distraction delay to DCLG bringing forward key planning changes. The Housing and Planning Act 2016 received Royal Assent on 12 May It introduced significant changes to the way that housing is to be delivered across England. Secondary legislation dealing with many of the Act s provisions and including those relating to starter homes are yet to be made. Parliamentary and civil service focus is inevitably on the implications of Brexit. The speedy production of domestic regulations and the progression of on-going consultation may well suffer in the short term generally. Areas of particular importance post Brexit include: Starter Homes and Viability Impact of Brexit whether new starter homes provisions in the Housing and Planning Act will come forward as soon as expected, and, depending on the extent of impact on development viability as a result of the economic shock of the Brexit decision, what level of minimum requirement vis a vis other types of affordable housing and infrastructure priorities will be settled on and what level of flexibility will there be to respond to market conditions. If the viability of schemes is badly affected by ongoing Brexit uncertainty, then the challenge of delivering starter homes at scale, whilst continuing to try and: provide other types of affordable housing to meet the objectively assessed housing needs; and continue to meet local infrastructure requirements via CIL payments and/or S106 obligations, will increase. In London, for example, Mayor Khan is considering the position carefully as to what is realistic whilst delivering his affordable housing and Homes for Londoners manifesto commitments; and London Boroughs are also considering the position carefully in Local Plan and CIL reviews. For any residential developers who wish to push through planning applications without the need to comply with the starter homes requirement, there may now be an extended opportunity to do so. The Government has said that it intends the Housing and Planning Act regulations to apply only for planning applications submitted to the local planning authority after the date the regulations come into force. S106 re-negotiation and dispute resolution post Brexit whether and when the new S106 dispute resolution procedure provided for in the Housing and Planning Act will come forward. This is potentially significant in resolving any viability and other disputes caused by market impacts associated with Brexit, in particular following the lapsing of S106BA and BC Town and Country Planning Act 1990 which allowed applicants to apply for relaxation of S106 agreement viability provisions. Local Plan Experts Group recommendations whether there will be a speedy taking forward of the Local Plans Expert Group recommendations, in particular where they relate to matters such as the SEA and sustainability appraisal interface; the approach to calculating objectively assessed housing needs (including inmigration calculations); and the extent of recommended supply buffers in a more viability challenged environment. CIL reforms whether there will be a speedy taking forward of the CIL reforms expected shortly; bringing these forward would be likely to benefit schemes in flexibility and certainty terms, so hopefully these will be progressed quickly. Permitted development rights reform whether the DCLG consultation proposals will be brought forward or delayed; hopefully they will be brought forward speedily to help boost development in any difficult post Brexit market. Whilst the Government may be keen to be seen to press on with implementing planned reforms to demonstrate it is business as usual we expect some general slowing of pace in reform. However we hope that measures designed to boost development in any difficult post Brexit market will proceed quickly. Q7 What else should developers consider in the planning process as a result of the Brexit vote? As the market effects of the Brexit vote become clear, we anticipate that developers may wish to re-examine scheme viability in the context of: the level and mix of affordable housing provision; potential re-engineering of S106 obligations including the terms of any viability review mechanisms. When the new S106 dispute resolution procedure comes into effect, this may provide an opportunity for fast track independent review of viability; S73 applications for scheme changes; CIL viability evidence bases and representations to amend CIL rates; and Compulsory Purchase Order scheme viability. 06

7 Brexit Planning & environment implications for commercial & residential development in England Q&A The Brexit Advisory Team Richard Ford T: M: E: Nicholle Kingsley T: M: E: Jonathan Riley T: M: E: Michael Pocock T: M: E: Gordon McCreath T: +44 (0) M: +44 (0) E: Iain Gilbey T: M: E: Marcus Bate T: M: E: Rebecca Warren T: M: E: Richard Griffiths T: M: E: Gary McGovern T: M: E: 07

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