On 11 February 2021, the House of Lords will debate a regret motion on the Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020 (SI 2020/928). If approved, the regret motion would have no legal effect; instead, regret motions allow the House to put its concerns about an instrument on record.

The instrument allows the Government to grant temporary planning permission for inland border facilities on various sites in England. These facilities are needed due to the increased border control measures necessary to process goods now that the UK has left the EU. The sites would also be used for the stationing of vehicles (particularly goods vehicles) entering or leaving Great Britain and the provision of associated facilities and infrastructure.

The instrument was laid on 3 September 2020 and came into force on 24 September 2020. It is a negative instrument laid before both Houses of Parliament. As a result, it became law automatically, but could have been revoked if either House agreed an annulment motion within 40 sitting days of it being laid. The time limit for annulling the instrument expired on 12 October 2020.

What does the instrument do?

The instrument allows the Government to grant temporary planning permission for development consisting of the use of land, in specified parts of England, as inland border facilities. These facilities would provide for border processing, the stationing of vehicles (particularly goods vehicles) entering or leaving Great Britain, and the provision of other necessary facilities and infrastructure.

Why is this needed?

The Government explained that the new facilities are needed due to the increased controls necessary now that the UK has left the EU and to ease pressure on traditional border facilities at ports:

From 1 January 2021 the UK will introduce new controls that apply to all goods imported from the EU. This will require building new border facilities in Great Britain for carrying out required checks, such as customs compliance, transit, and Sanitary and Phytosanitary (SPS) checks. While port operators would normally provide the border facilities, there is limited space for the new facilities at some ports. Additionally, the Government is aware that the impact of coronavirus may have affected the ability of port operators and businesses to provide the necessary infrastructure by the end of the year.

The integrity of the border is essential for the security of the UK and one of the primary defences against a range of threats. It is also used to enforce international sanctions and embargoes, supporting the UK’s foreign policy and national security objectives. Where there is limited space at ports for new infrastructure, the Government will provide new inland sites where checks and other border processes will take place.”

The Government has stated that it will be engaging with port operators over the need for the new sites, including the number required and their location.

How are new facilities approved?

This Special Development Order speeds up the planning process for these sites. The Government argued that the order is critical for the urgent delivery of the facilities.

The temporary planning permission can only be implemented by, or on behalf of, the following ‘border departments’:

  • HM Revenue and Customs;
  • the Department for Business, Energy and Industrial Strategy;
  • the Department of the Environment, Food and Rural Affairs; and
  • the Department for Transport.

The Secretary of State for Housing, Communities and Local Government must approve each development. The border department will need to submit an evidenced proposal for the secretary of state’s consideration. The border department must also first engage with relevant parties, including: owners and occupiers adjacent to the site and its access routes to the site (residents, businesses and others); the relevant parish council; the local planning, highway, police and fire authorities; and the statutory environmental bodies. A report on engagement with these parties must be included in the submission for the development.

Planning permission is also subject to several conditions. It is not permitted on land within sensitive areas, such as protected environmental habitats, or where it would otherwise have a significant environmental impact. In addition, the use of the land for the facilities must end by 31 December 2025, and all reinstatement works must be completed by 31 December 2026.

How many facilities have been approved so far?

According to the Government’s new inland border facilities website, facilities have been approved on seven sites:

  • Ashford Sevington
  • Ashford Waterbrook
  • Birmingham airport
  • Ebbsfleet
  • Manston airport
  • North Weald
  • Warrington

In addition, a site has been proposed just outside of Dover (the ‘White Cliffs’ site).

Further information on all these sites can be found on the Government’s inland border facilities website.

What has been the reaction to the measures?

The instrument was laid on 3 September 2020 and came into force on 24 September 2020.

On 17 September 2020, the House of Lords Statutory Instruments Scrutiny Committee drew the order to the special attention of the House on the grounds that it “gives rise to issues of public policy likely to be of interest to the House”.

As part of its scrutiny, the committee asked the Ministry of Housing, Communities and Local Government (MHCLG) what would happen if the sites were needed for longer than initially planned and how they would deal with local objections. The department stated that a new planning application would be required if the site was needed beyond 2025. Regarding local objections, it said these would be considered by officials within the department and ministers who are not involved in making the application:

MHCLG is the decision-maker […] MHCLG will consider and reach a view on whether there has been adequate local engagement by a border department, based on the information provided in the report accompanying any submission. Any decisions on a request to approve the use and development of a specific site will be made following independent assessments by qualified town planners in the Ministry and independent scrutiny by ministers who are not the promoter of the facilities will take decisions without pre-determination. There is no presumption that site specific proposals will be approved. In making decisions MHCLG will consider the planning merits any proposal, including any representations received.

On 25 September 2020, Baroness Randerson (Liberal Democrat) tabled the following regret motion:

Baroness Randerson to move that this House regrets that the Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020 (SI 2020/928) will have considerable implications for the haulage industry and the local areas that these measures will affect, and regrets that the failure of Her Majesty’s Government to prepare for Brexit has required these measures to be implemented.

The motion will be debated in the House of Lords on 11 February 2021. However, even if the House voted in favour of the motion, the instrument will remain law.

Concerns have been raised in local areas about the potential impact of the facilities, particularly the congestion they may cause and the effect on the land and the local community. In addition, there have been reports of hauliers facing long queues and poor conditions on some of the sites, as well as charges for the time they spend waiting.

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Cover image by Michael Gaida at Pixabay.