Planning post Brexit

Julian Boswall and Alex Minhinick consider how the UK's withdrawal from the EU may affect planning policy, as well as two significant domestic judgments

Brexit has a range of implications for planning in the short, medium, and longer terms. These are hard to predict in terms of timing and detail, but it seems likely they will favour development.

The most immediate effect of Brexit on planning is the potential slowdown in development
coming forward as a result of wider economic considerations. With the exception of the Heathrow delay, government infrastructure projects appear to be proceeding, with an express effort to make this clear. This was certainly a theme at the recent National Infrastructure Forum, including a statement by the secretary of state for transport to that effect. The work of the National Infrastructure Commission takes on an even greater significance post Brexit. The UK is the only major economy in the world to have such a commission to assess infrastructure needs and make recommendations on priorities within government-set investment limits. It will be essential that the shrewdest national decisions are made in the next few years.

It is reasonable to assume that the government's approach to planning will be pragmatic. First, the government is likely to pursue further any changes to the planning regime which it believes will promote development and investment. There have been numerous changes to permitted development in recent years in line with this agenda. A revival of the recently repealed mechanism for reviewing unaffordable housing obligations is a credible possibility. A review of the community infrastructure levy and other measures
may be on the cards in due course.

Second, it is likely that the vast majority of the planning system will proceed on a 'business as usual' basis during the exit period and beyond. This is because the UK is very committed to having a planning system and because the vast majority of the legislation has been enacted within the various domestic legal jurisdictions and does not rely on direct EU regulations.

One overarching issue is whether or not the terms of whatever new deal the UK enters into with the EU will require the UK to comply with EU directives and regulations and the judgments of the Court of Justice of the European Union (CJEU) on an ongoing basis, as is the case with Norway and Switzerland. This article assumes that this will not be so.In relation to environmental impact assessment (EIA), it is hard to see a significant move away from this key aspect of the planning regime during exit or afterwards. Interestingly, the Department for Communities and Local Government (DCLG) has already stated publicly that it still intends to bring in the new EIA Directive, which must be in force for May 2017. In due course, the status of CJEU judgments will have to be clarified. The most likely outcome would be to leave their authority in place, but specify the circumstances in which they can be overruled by the UK courts.

In relation to strategic environmental assessment, it is possible to see this being revisited in due course as its practical benefits
are not as clear cut as for EIA.

The habitats regime is extremely likely to remain in its fundamental structure as the public support for a network of protected areas is very strong. It is likely, however, that certain key CJEU judgments which have arguably caused it to operate in an overly precautionary way will be revisited in the future.

The UK is a signatory in its own right to the Aarhus Convention on access to environmental information, participation in decision making, and the review of decisions. Again, it is reasonable to assume the UK will want to maintain its commitment to this convention.Air quality is an area where the UK is already in breach of the key directive and is encountering difficulties in securing compliance. It is an increasing issue on a range of planning decisions, including Heathrow. There must a real temptation on the part of the government to take advantage of the impending EU exit to reconsider its approach in the near term.

Finally, while it is not yet clear what formal stance the European commission is taking on live complaints and infraction proceedings, it is hard to see new proceedings being initiated. The threat of such proceedings has been a significant matter in the operation of the UK planning system, with real implications for different sectors. In a similar vein, there must be a rather strange shadow cast over live proceedings in the CJEU and the approach to initiating new proceedings.

Making Brexit predictions in this or any other area is inevitably difficult at this time. The new administration will need to set a clear course as part of an overall strategy. Town and country planning predates even the earliest stirrings of the EU. It is at the heart of the functioning of a civilised society in balancing the demands of the economy and development with a quality of place and life. It is to be hoped that whatever changes do in fact take place going forward in the light of Brexit will guided by pragmatism and the fair balancing of the various competing interests within our country.

Community benefits

In other news, in R (Wright) v Forest of Dean District Council [2016] EWHC 1349 (Admin), the High Court declared planning permission that had been granted for a wind turbine unlawful because the local planning authority had wrongly taken into account a proposed annual local community donation as a material consideration.

The community donation was proposed
by Resilient in its application for planning permission to install a wind turbine in Tidenham, Gloucestershire. The turbine was to be operational for 25 years, with an average annual donation
of between £15,000 and £25,000 to the local community during this period. These funds
would be spent on initiatives benefiting the local community, as determined by a community benefit society.

Planning permission for the turbine was granted, but challenged on the basis that the donation was not a material consideration. The High Court held that as the donation did not serve a planning purpose, was not related to land use, and had no real connection with the proposed development, it was not a material consideration. The donation therefore should not have been taken into account.

This decision will need to be considered with care by developers seeking to incorporate any element of community ownership or benefit into their schemes. While it is expected developers
will continue to make voluntary contributions
in order to aid community support for schemes, they will need to be extremely careful to ensure that such provision does not undermine the integrity the planning decision that is being
made if the courts are to continue to take this strict approach.

We understand that at the time of writing
leave is being sought to appeal from the Court of Appeal by both the council and interested party.

Ministerial statements

Finally, we turn to an important Court of Appeal decision overturning a High Court decision that we reported on in December 2015 (SJ 159/45).

In West Berkshire District Council and Reading Borough Council v Department for Communities and Local Government [2016] EWCA Civ 441, the Court of Appeal has overturned the decision of
Mr Justice Holgate in the High Court to quash policy introduced by DCLG by way of ministerial statement in November 2014.

The National Planning Policy Guidance
(NPPG) was amended to exempt smaller residential developments from requirements to make provision for affordable housing, and a 'vacant building credit' introduced to set off floor space of any vacant building brought back into use against affordable housing contributions.
Those amendments were quashed due to their inconsistency with the statutory provisions for the adoption of local planning policies, and certain consultation failures.

Despite the High Court's stinging critique of DCLG's introduction of policies by ministerial statement, the Court of Appeal has determined that planning decision makers are able to read the unequivocal terms of the ministerial statement with reference to their own informed position that such statements must be read in the context of the statutory tests on planning applications. That is, despite the policy's absolute terms, it is not to be read as an inflexible standard, but merely another material consideration within the remit of those to be taken account of by decision makers. Other concerns regarding the making and consulting on the policy were also set to one side by the court.

The effect of this decision is that the ministerial statement is once again in force, as is the vacant building credit. The NPPG was re-amended shortly after the court's decision to reflect
that position.

Julian Boswall, pictured, is a partner and Alex Minhinick an associate in the planning and compulsory purchase group at Burges Salmon @BurgesSalmon www.burges-salmon.com