England relaxes planning rules for Brexit border infrastructure

Out-Law News | 10 Sep 2020 | 5:17 pm | 2 min. read

The government is introducing a fast-tracked planning process for new infrastructure and facilities needed at and around UK ports to accommodate increased border processing that might occur as a result of the end of the Brexit transition period.

A new special development order, which comes into force on 24 September, will apply in named areas of England only, and is targeted at the infrastructure needed to check and process vehicles on entry to the UK as well as facilities for drivers and border processing agents. The order gives planning permission for the development and changes of use to which it relates, but only named government 'border departments', including HM Revenue and Customs (HMRC) and the Department for Transport (DfT), will be able to apply for approval from the secretary of state to make use of the permission.

The order has been welcomed by the logistics industry, including the British Ports Association (BPA).

Planning law expert Francis Tyrrell of Pinsent Masons, the law firm behind Out-Law, said that the powers granted by the new regulations were in effect limited to smaller developments to which environmental impact assessment (EIA) requirements do not apply. Protection for the most highly protected European sites had also been retained, he said.

Francis Tyrrell

Francis Tyrrell

Partner

Realistically, the new order will apply to more modest changes in and around ports.

"Although there is no specific limitation in scale as to what could be included within the permitted development, in reality it is limited as it does not authorise EIA development – so no new motorways or express roads; and no new roads over one hectare or motorway services over 0.5 hectares unless the secretary of state concludes that they are not likely to have a significant effect on the environment," he said. "Realistically, then, the new order will apply to more modest changes in and around ports."

"Proposals must be put forward by a relevant border department - for example, HMRC - with the 'site owner', such as the harbour authority, only engaged on the application. Presumably, in practice, it is likely that the border department will have discussed things at length with port operators, as it is difficult to see how the border department will be best placed to lead on the necessary infrastructure to process port traffic efficiently through the port and surrounding areas," he said.

Tyrrell said that the geographic restrictions of the order were presumably based on "key ports where there might be possible pinch points in terms of border processing", and that it was possible that similar orders could follow from the devolved administrations in relation to sites in Wales and Scotland "given the importance of ports there to cross-Irish Sea trade".

Tyrrell also noted the "underlying assumption throughout the order of reinstatement", with the presumption that the need for any new infrastructure would ultimately fall away and the sites will be returned to their former use and condition. 

"Absent a future change in trading rules with the EU – or significant technology changes rendering the processes quite different – it is not clear to me why the need for infrastructure would fall away," he said.

"The order presupposes that this will happen in relatively short order too – the general position is that reinstatement plans should be submitted on or before June 2025. Those plans will set out a timetable for reinstatement, and the base position is that buildings should be removed - although the secretary of state will be able to exempt buildings," he said.

"The order sits alongside other steps the UK government is taking to prepare for the end of the transition period, for example regulations made today providing for customs bulk declaration processes," Tyrrell said.