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Scotland: Making provision for the continued operation of planning and environmental regulation after Brexit

  • United Kingdom
  • Brexit
  • Real estate planning
  • Real estate sector

02-04-2019

In preparation for the forthcoming withdrawal of the UK from the EU, Scottish Ministers have been amending legislation and associated regulations controlling the requirements and processes of town and country planning and environmental matters. The purpose of these changes is to ensure that the regulatory framework for all such matters continues to operative effectively in Scotland following withdrawal from the EU, regardless of whether agreement is reached on the terms of departure.

The changes include updating references to EU Directives to the Directives as these had effect immediately before “exit day”, updating references to the EU, EU institutions and administrative procedures to domestic equivalents and updating legal references to refer to domestic legislation. For example, the information required in an EIA report has to take into account relevant EU or Member State environmental protection measures, including those established under the Habitats and Birds Directives. After “exit day”, the EIA report must take into account relevant EU (as they had effect immediately before exit day) or UK environmental protection measures, including those established under any UK law that implemented the Habitats and Birds Directives.

The changes by the Scottish Ministers include amendments to the 2008 Development Planning Regulations, the 2013 Development Management Procedure Regulations, the Environmental Impact Assessment regime as it applies to both town and country planning and electricity works applications, the Wildlife and Countryside Act 1981, a suite of environmental protection regulations including controlled activities in the water environment and the marine licensing regime.

The legislative definition of “exit day” defines the day when the UK changes its laws to deal with the domestic consequences of exiting the EU and brings the new system of retained EU law into effect. As matters currently stand, in the absence of any further decisions, “exit day” is 12 April at 11.00pm. Subject to any further decisions and with any necessary agreement at EU level for a revised Brexit day, further secondary legislation will need to be brought forward by the UK Government to amend the current legislative definition. Provision has been made for this process in the European Union (Withdrawal) Act 2018.

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