Environmental and Planning

The final outcome of the Brexit negotiations remains uncertain and therefore the impact on Planning and Environmental Law in Northern Ireland also remains uncertain.

In the short term, Brexit will have limited impact on Planning and Environmental law in Northern Ireland. The European Union Withdrawal Act is designed to convert all EU law into UK law, as well as creating temporary powers for Parliament to fill any gaps or amend legislation to fit the UK framework. However, in some areas, such as REACH or Air Emissions, where the EU law is underpinned by a separate EU institution, it may be more difficult to put in place meaningful amendments.

Planning law incorporates environmental regulatory aspects from the European Union (EU) on matters such as Environmental Impact Assessment, Strategic Environmental Assessment and Habitat Assessment and the UK’s withdrawal from the EU will, in the long term have a major impact in these areas.

There are several international environmental treaties which have been ratified by the EU and not the UK individually, others have been ratified by both the EU and the UK.  The status of such treaties post Brexit is uncertain. One such treaty is the Aarhus convention which amongst other things sets out the regime to limit exposure to legal costs in environmental matters and includes provisions on access to information, public participation and access to justice in environmental matters.  It acquires much of its force in the UK legal system through the relevant EU secondary legislation implementing it, for example, on Environmental Impact Assessment.

There will also be a loss of the enforcement powers currently available to the European Commission and the important associated procedure in which citizens may make a complaint, informally and free of charge, to the Commission.  It is notable that most infringement proceedings have been in respect of environmental matters.  The use of judicial review to enforce environmental standards is extremely costly and therefore the loss of the Commission Complaints procedure will be keenly felt.

The latest proposed deal between the EU and the UK includes a declaration that the UK will maintain a “level playing field” in terms of environmental standards. However, this declaration is contained within the political declaration of the agreement and therefore, as some commentators have noted, may not be legally binding.

The extent to which Northern Ireland is free to depart from EU standards will obviously depend on the terms of any trade agreement with the European Union. It seems unlikely that the EU would be content to accept a position where the United Kingdom gives its industry a competitive advantage by lowering domestic standards.  This will be particularly the case in respect of Northern Ireland given its geographic location.

If you or your business have any questions on the potential implications of Brexit in relation to the environment and planning, please feel free to get in touch.