Surrey campaigner applies for permission to appeal to Supreme Court over go-ahead for oil wells

Surrey campaigner Sarah Finch has applied for permission to appeal to the Supreme Court over the lawfulness of the decision to allow oil wells to be drilled at Horse Hill, north east of Gatwick Airport.

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Posted on 31 March 2022

Court of Appeal judges were divided over the claim that Surrey County Council acted unlawfully when it granted permission for the wells in September 2019.

Lord Justice Moylan agreed that the failure to factor in “downstream” emissions produced through the commercial use of the oil to be extracted from the wells mean that the environmental impact assessment (EIA) did not comply with the regulations and was therefore unlawful.

However, the Court majority held that it was ultimately a matter for the local planning authority to decide whether the “downstream” emissions were a significant effect of the development. They ruled that the reasons given by Surrey County Council for deciding that the downstream emissions were not an effect of the development, and therefore did not require assessment, were lawful.

Sarah, with the Weald Action Group, contends that it is unlawful for a local planning authority to grant planning permission without quantifying the downstream emissions, also known as “scope 3 emissions”. She maintains that Surrey County Council should have considered the “downstream” emissions that will be produced by the burning of 3.3 million tonnes of oil to be produced by the wells in south east Surrey over the next 20 years.

Represented by environmental specialist lawyers in law firm Leigh Day’s human rights department, Sarah says her case raises points of law of public importance: the Appeal Court ruling means other local councils can grant permissions for commercial fossil fuel production without the climate impact being part of the EIA.

Grounds of appeal include

The Court of Appeal was wrong to conclude that intermediate processes (between the extraction and the eventual burning of the oil) meant the “downstream” emissions were not environmental effects to be assessed
The Court erred in leaving the above matter for planning judgment, as opposed to a principle of law.
The Court mistakenly focused on how the project was defined rather than the environmental consequences.
There is a contradiction in the Court of Appeal’s ruling that the “downstream” emissions were material considerations, but not indirect environmental effects.

Sarah has campaigned with others against the proposed expansion of the Horse Hill Developments Ltd site, which would result in oil production well into the 2040s, including five drilling cellars, four hydrocarbon production wells, four gas-to-power generators, a process and storage area and tanker loading facility, seven oil tanks, each with a 1,300-barrel capacity and a 37-metre drill rig.

Sarah Finch said:

"I remain convinced that Surrey County Council was wrong to allow 20 years oil production during a climate emergency without considering the effects of the burning of that oil as a significant indirect impact. Given that a senior judge agreed with me in the Appeal Court, I feel this needs clarifying by the highest court in the land."

Rowan Smith, Leigh Day environmental law solicitor who represented the campaigners, said:

“Given three Court of Appeal judges cannot agree unanimously about whether Surrey County Council acted lawfully, and owing to the importance of the issues at stake for the future of the climate, it is only right for our client to seek permission to appeal to the Supreme Court. We hope that, in the process, the law can be clarified.”

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Rowan Smith

Rowan Smith is a senior associate solicitor in the human rights department.

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