Residential property
17 Nov 2017 News

Brexit and the Public Interest

The committee stage at the UK Parliament of the ‘Great Repeal Bill’, formally known as the European Union (Withdrawal) Bill, is due to start on 14 November. 

Most day to day aspects of the planning system will not be directly affected by Brexit; most day to day aspects are smaller local development. Nevertheless the impact of Brexit on planning, especially for major development, should not be underestimated. Development plans need Strategic Environmental Assessments. At the individual development level, major developments often require Environmental Impact Assessment (“EIA”) - and in every case an authority must work out whether a development needs EIA. Environmental Assessment procedure is almost entirely derived from EU law.  

At the time of writing, the effect of the European Union (Withdrawal) Bill would be to continue in effect all EU derived law post-Brexit (i.e. from 30 March 2019).  Decisions of the European Court of Justice - which are highly significant in the interpretation of EIA and Habitats/Birds Directive matters - would no longer be binding, but a UK court can “have regard” to them “if it considers it appropriate to do so.”  Since suddenly not to have regard to the EU case law would disrupt the continuity of the law it seems likely that pre-Brexit EU court decisions will remain binding in practice for some time to come.

However, the “same old same old” approach doesn’t work for everything.  For a specific example of the potential for post-Brexit difficulties, let us turn to the Habitats and Birds Directives.  These European Directives are used to designate sites for special protection (“protected sites”).  These form a European network of protected sites overseen by the EU.  Development which is likely to impact a protected site - even if outwith the site boundary - is subject to strict development control.  The Directives are a rare example in planning where a council, or Government Minister, cannot simply decide the positive aspects of a project outweigh the adverse effects.  Where an adverse effect on site integrity cannot be ruled out consent must be refused, unless special conditions are met, including that imperative reasons of overriding public interest (“IROPI”) exist. 

Importantly, for priority habitats/species, even if IROPI exists consent can only be given following consultation with the European Commission.  The need for oversight by the Commission can be seen as an important guarantee that IROPI exists.  It gives assurance that it is not simply a politically expedient decision.   It’s not at all clear how the provision for oversight of UK bodies will translate post-Brexit; indeed it would seem incompatible with the principle of Brexit.  Perhaps the courts will be asked to intervene and determine whether IROPI exists?  But IROPI is a question of public interest.  In UK domestic law the courts usually defer to the Government on what is in the public interest.  It therefore seems possible that without legislative action IROPI will become simply another factor in the overall balancing exercise, rather than the high test envisaged in the legislation.

The intention of this article is not to debate whether such a result would be “good” or “bad”.  Instead, we suggest this as an example that regardless of the rights or wrongs, far from being ‘free’ from EU law post-Brexit, at least in the short term EU derived law will have a greater complexity - and potential for dispute - than ever.  Thorough legal and planning support from the outset to avoid these questions will remain as, if not more, important.

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