At first, we won’t notice a great deal of difference. For a start, the UK would not instantly leave the EU following a ‘leave’ vote. Article 50 of the Treaty on the European Union (the Maastricht Treaty as amended by the Lisbon Treaty) contemplates that a withdrawal agreement will be negotiated following a request to leave and the country would leave after two years.
Regulations
Once the UK was no longer a member of the EU, regulations and treaty provisions would no longer apply from that point forwards. Directives are somewhat different because they are transposed into national legislation which is then the operative law, so these would not disappear automatically even if the directive no longer applied.
Most of the secondary legislation implementing Directives is made under the European Communities Act 1972, and so if that Act was repealed without any saving provisions, it would mean all the UK implementations of directives would instantly fall away. This is unlikely to happen because it would cause – even more – chaos and so secondary legislation is likely to be saved, at first at least.
Environment
The two main Directives affecting planning are the Environmental Impact Assessment (EIA) Directive, requiring the environmental effects of projects to be assessed and considered in the balance by decision-makers and the Strategic Environmental Assessment (SEA) Directive, which applies the same process to plans. Note that the revised EIA Directive must be transposed by May 2017 so that this would still happen.
There are also four environmental protection Directives that require absolute standards to be maintained in all but exceptional circumstances: the Habitats and Birds Directives, the Ambient Air Quality Directive and the Water Quality Directive.
Whilst these Directives would remain in place, economic and market pressures may see them weakened over time as the superior obligations inherent in the parent EU legislation no longer apply.
The UK would have a choice: mirror the EU protections (perhaps as a condition of free movement of goods and services) without having a say in their development or fall behind with the protection of people and the environment in the name of economic imperatives. The UK could introduce greater protections, of course, but that could still happen while remaining in the EU. The underlying requirement for public participation in environmental decision-making comes from the Aarhus Convention, which the UK has signed up to independently from membership of the EU, so some form of public involvement would have to remain.
International issue
Air quality is a good example. Would the UK government be trying so hard (or be forced by the courts to try harder) to improve air quality if it weren’t for EU legislation? Does air quality respect national boundaries or is it appropriate for it to be tackled internationally? This is just the sort of issue that needs an international level playing field: if it were left to individual countries’ self-determination, each would tend to undercut the other in the name of economic competitiveness or would water down proper regulation at the expense of public health.
Funding
In terms of day-to-day planning, although the rules will not change for developments below environmental impact assessment thresholds, the funding of projects and therefore their coming forward as planning applications, may suffer.
I was at a conference recently where Danish investors said they would be more reluctant to invest in the UK following Brexit, because even if the UK mirrored commitments to policies adopted by the EU that encouraged investment, they felt they would be less ‘set in stone’ if it was just one country making the commitment rather than 28 countries doing so jointly, accountable to the others. Even for projects not dependent on inward investment, I think that a climate of less money coming to the UK would have a general depressing effect on the economy that would not be positive for planning.
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