Civil Law

In the fifth of our blogs on recent developments in planning law , we turn our attention to the Retained EU Law (Revocation and Reform) Bill 2022 introduced by Jacob Rees-Mogg at the height of the Truss premiership in September 2022. 

Described by Professor Michael Zander KC as “one of the worst pieces of legislation I can remember in some 60 years of following the law-making process“, the Bill seeks to deliver on the Brexit promise of taking back control of our legislation.

It is a highly controversial piece of legislation which is due to become law in spring this year and is likely to have a major impact on planning law (amongst others). How?

Retained EU Law – what is it?

Retained EU law is law that was originally introduced by the EU and became part of UK law, and which was preserved after Brexit by the European Union (Withdrawal) Act 2018.  That Act “froze” the law as it was in 2020 and made it UK law.  The Government now wants to end the special status of retained EU law.

There’s a lot of retained EU law. No one, least of all the Government, seems to know how much, though.  Estimates suggest there are more than 3,000 pieces of law (not including caselaw).  DEFRA, which is responsible for relevant EU planning law, is reviewing about 600 pieces of legislation.

How does the Retained EU Law Bill work?

The key provision in the Bill – and the one everyone is getting excited about – is the “sunset clause”.  This states that all retained EU law that has not been specifically saved will be automatically revoked on the expiry of the sunset period, being 31 December 2023 unless extended, but in no event can this date be extended beyond 23 June 2026.

The Government hasn’t given any indication of which laws could benefit from the extended sunset clause or how decisions on this will be made.

The main concern is that, given the volume of legislation involved and the tight timeline for review, combined with very limited civil service resources, legislation will not be reviewed in time.  It may  not even be identified in time and so, consequently, might be unknowingly repealed.

All of this might have a superficial appeal in terms of a “bonfire of red tape”, but could actually have the reverse effect if it leads to legal uncertainty, and accordingly more litigation, thus slowing rather than speeding up the planning process, not to mention potentially exacerbating environmental damage.

What planning laws are likely to be affected?

The Wildlife Trusts have identified a number of important pieces of planning-related legislation which are at risk of repeal and in respect of which the Government has not yet set out its intentions.  We summarise these below.

• The Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”) – this sets out measures for more restrictive planning controls aimed at protecting endangered species and habitats.
• The Environmental Assessment of Plans and Programmes Regulations 2004 – this imposes the requirement to carry out an environmental assessment of development plans and National Policy Statements, amongst other things.
• The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 – which contain the requirement to carry out environmental assessment of individual planning applications.
• The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 – including the duty to consider impact of proposed development on river basin management plans and supplementary plans.

The Habitats Regulations (referred to above) are aimed at protecting habitats and species in particular through the designations of Special Areas of Conservation (SACs) and Special Protection Areas (SPAs).

Potentially, the Bill could lead to the loss of these designations, as well as the loss of the requirement for a Habitats Regulations Assessment in the planning process.  This, in turn, would make it impossible to deliver Biodiversity Net Gain, which is a central requirement of the Environment Act 2021.

The Bill is currently making its way through the House of Lords and is set to become law in Spring 2023.  We’ll be following its progress, especially with regards to any specific proposal on the legislation referred to above.

***

See our other blog posts in this series:

Our top 6 Planning Law takeaways in 2022 – Part 1: The problem of overlapping planning permissions

Our top 6 Planning Law takeaways in 2022 – Part 2: Proposals to stop “landbanking”

Our top 6 Planning Law takeaways in 2022 – Part 3: What to do when the planners delay

Our top 6 Planning Law takeaways in 2022 – Part 4: What happens if the local authority gets its CIL paperwork wrong?

***

If you wish to receive periodic updates on this or other topics related to UK real estate, subscribe to our Real Estate Insights mailing list.

For any other legal questions related to UK real estate, please get in touch with your usual Mayer Brown contact or one of the blog editors.

LexBlog