Supreme Court to hear challenge to planning permission for oil production at Horse Hill, Surrey

The case is of major importance to future decisions by planning authorities about applications to extract fossil fuels across England and Wales and centres on the correct interpretation of the Environmental Impact Assessment (EIA) Regulations 2017.

The claim is supported by Friends of the Earth and Greenpeace UK, both intervenors in the case. The Office of Environmental Protection and West Cumbria Mining Ltd have also intervened.

The proposed expansion of the Horse Hill Developments Ltd site, with five drilling cellars, four hydrocarbon production wells, four gas-to-power generators, a process, storage and tanker loading area, seven 1,300-barrel oil tanks, and a 37-metre drill rig would allow large-scale production of up to 3.3 million tonnes of crude oil for sale and use as transport fuel for 20 years.

Sarah Finch, on behalf of the Weald Action Group, says Surrey County Council should have taken into consideration the “Scope 3” downstream greenhouse gas (GHG) emissions of the crude oil to be extracted in its environmental impact assessment of the site for planning permission.

Court of Appeal judges were divided, but Sarah Finch says their majority interpretation of the EIA regulations means that decision-makers may grant permission for commercial fossil fuel production without the climate impact of such development ever being subject to full environmental impact assessment.

She says a plain language interpretation of the EIA Regulations means it is unlawful for a planning authority to grant planning permission without the benefit of an assessment of the nature and magnitude of the GHG emissions which would be caused by the oil’s combustion.

The crude oil drilled at Horse Hill could be refined and used in the United Kingdom, or exported and then refined and used anywhere in the world.

Sarah says the GHG emissions from this use are “indirect effects” under the EIA Regulations and should have been assessed by Surrey County Council planners. She says Appeal Court Judge Moylan LJ was correct to conclude that the focus of the development at Horse Hill was not construction works but the “essential character” is the extraction of oil for commercial purposes. Sarah says it is artificially narrow to limit the “end product” of commercial fossil fuel production project to its operational well site and its eventual restoration.

The EIA process is aimed at ensuring decision-makers make decisions on granting planning permission “in the full knowledge of the likely significant effects” of the project and since 2014 additional emphasis has been placed on the importance of the climate change impact of development in the assessment and decision-making processes.

Sarah says the Court of Appeal was wrong to hold that while downstream GHG emissions may be an indirect effect of a development for the production of fossil fuel, it was ultimately a matter of planning judgment for the planning authority whether those emissions are truly a likely significant effect of the proposed development. She also says it was wrong for the Court of Appeal to conclude that the reasons given by Surrey County Council in deciding that the downstream GHG emissions were not an effect of the development were lawful.

Sarah argues that for Surrey County Council to grant planning permission based on a complete absence of any assessment of the unavoidable indirect effects on climate of the inevitable burning of the extracted petroleum was unlawful.

Her grounds are that the Court of Appeal was wrong to:

• Hold that downstream GHG emissions were not indirect effects of the development
• Hold that EIA is “project-centric” and exclude downstream GHG emissions from being indirect effects because the use of products generated by refinement of oil “was not part of the project”
• Find compliance with the EIA Regulations entirely a matter of “planning judgment” even if assessment of an indirect effect is wholly absent.
• Accept that downstream GHG emissions were a material consideration for the planning decision but were not indirect environmental effects.

Sarah Finch said:

“The biggest climate impact from fossil fuel projects occurs when the fuel they produce is eventually burned. It's unbelievable that these 'downstream' GHG emissions are ignored when planning decisions are made. I hope that the Supreme Court will give a clear ruling and end the dangerous lack of clarity on this point."

Friends of the Earth lawyer, Katie de Kauwe, said:

“This is a critically important legal challenge that could have significant repercussions for new fossil fuel projects, including the proposed new coal mine in Cumbria.

“Sarah Finch’s legal challenge could ensure that the full climate impacts of new fossil fuel developments have to be taken into account in the environmental impact assessment when planning applications are considered. We’re in a climate crisis and it’s absurd that this is not happening already.”

Stephen Kinsella of Law for Change who are helping to fund the case, said:

“The Finch legal challenge has the potential to clarify the law for the public good by ensuring that the climate change repercussions of new fossil fuel developments are fully considered before planning applications are given the go-ahead. Law for Change is proud to be supporting this important Supreme Court case that could have a significant impact on the UK’s climate change ambitions.”

Sarah Finch is represented by solicitor Rowan Smith at law firm Leigh Day.

Rowan Smith said:

“It’s difficult to overstate the importance of this case. The Supreme Court will rule conclusively on whether or not the climate change impact of fossil fuel development in the UK must be taken into account before planning permissions are granted. There is a huge amount at stake for the future of the planet and the UK’s ability to meet its carbon reduction targets.”

Rowan Smith has instructed Marc Willers KC of Garden Court Chambers and Estelle Dehon KC and Ruchi Parekh, both of Cornerstone Chambers.