The requirements for the environmental assessment of development projects and policies are derived mainly from EU law, including Directives on Environmental Impact Assessment, Strategic Environmental Assessment and Habitats Regulations Assessment. They have already been implemented in the UK through domestic legislation and the assessment processes are well-established.
The impact of Brexit in this context depends, to some extent, on the terms reached with the EU as part of Brexit negotiations.
If the UK seeks to remain a member of the European Economic Area (‘EEA’) and the European Free Trade Association (‘EFTA’) in an approach similar to that taken by Norway, it is likely that it will be required to comply with most European legislation. For instance, EEA members are required to comply with the Environmental Impact Assessment and Strategic Environmental Assessment Directives but are not required to comply with the Habitats Directive. In the event that the UK seeks to remain only a member of EFTA in an approach similar to that taken by Switzerland, there will likely be more scope for flexibility.
Alternatively, if the UK chooses to operate outside these regimes and/or forges a bespoke relationship with the EU, it is anticipated that Parliament would need to take positive action in order to maintain the status of domestic legislation implementing the EU Directives.
Notwithstanding the possibility for repeal, it is likely that the Government will take steps to maintain a requirement for environmental assessment as part of the UK planning system. In particular, the UK’s international treaty obligations will continue after Brexit and include the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”) which requires public participation in environmental decision-making and access to environmental information. These obligations are, at least in part, met through the domestic legislation implementing the Directives on Environmental Impact Assessment and Strategic Environmental Assessment. Nevertheless, in this scenario, the Government would undoubtedly have more scope to change the approach to the assessment process to suit circumstances in the UK.
For further information please refer to our more detailed briefing on the potential implications of Brexit on UK planning law and practice.