Court of Appeal to hear challenge over environmental impact assessment and end product of developments

The Court of Appeal has agreed to hear a dispute over whether a developer's obligation to provide an environmental statement describing the likely significant effects of a development, both direct and indirect, requires an assessment of the greenhouse gas ("GHG") emissions resulting from the use of an end product said to have originated from that development.

In December 2020 Mr Justice Holgate dismissed a legal challenge brought by Sarah Finch to Surrey County Council’s grant of planning permission for the drilling of four new oil wells.

The High Court judge found that the case law confirmed that EIA must address the environmental effects, both direct and indirect, of the development for which planning permission was sought, (and also any larger project of which that development forms a part), but there was no requirement to assess matters which were not environmental effects of the development or project.

“In my judgment the scope of that obligation does not include the environmental effects of consumers using (in locations which are unknown and unrelated to the development site) an end product which will be made in a separate facility from materials to be supplied from the development being assessed,” he said.

Ms Finch has now been given permission to appeal.

In granting permission to appeal, Lord Justice Lewison is reported to have said that the EIA argument "has far reaching ramifications” and “the emission of GHG is a matter of considerable public concern".

The Court of Appeal judge added that "although the judge's reasons for his conclusion are cogent, they are open to proper challenge; and in view of the importance of the question, I regard this as a compelling reason for the appeal to be heard".

Specifically the appeal will determine whether there was a failure to comply with the 2014 EIA Directive and the 2017 Town and Country Planning (EIA) Regulations, owing to the fact that the indirect GHG impacts of the development from burning oil were not assessed, on the grounds that the Judge:

1. too narrowly interpreted the scope of EIA as only including an assessment of the impact from the works permitted and not of the significant environmental effects of the whole development; and as a consequence
2. wrongly held that the GHG emissions from the use of the oil were out of scope, notwithstanding that those emissions would happen elsewhere.

Ms Finch is represented by Leigh Day solicitors, Marc Willers QC (Garden Court Chambers) and Estelle Dehon (Cornerstone Chambers).
Friends of the Earth, which hopes to be allowed to intervene in the case, is represented by Nina Pindham (No 5 Chambers) and Paul Brown QC (Landmark Chambers).

Sarah Finch said: "I'm glad that the importance of this case has been recognised and we will now be able to put our arguments to the judges in the Appeal Court.

"The outcry earlier this year about the Government's refusal to intervene in the Cumbrian coal mine decision led to a change of heart. The Horse Hill oil case raises exactly the same issues – we can't go on extracting fossil fuels in a climate emergency.

"The UK will be a laughing stock at the global climate talks in Glasgow this year if projects like this are allowed to go ahead. If we want to be world leaders in avoiding dangerous climate change, we need to make sure our planning decisions are in line with our climate targets and that processes such as Environmental Impact Assessment are used to properly assess the full carbon impact of fossil fuel projects."

Rowan Smith, solicitor at Leigh Day, said: “This appeal is hugely significant. It is the first time that an Appeal court in this country has grappled with whether the current law goes far enough to ensure that the carbon impact from domestic fossil fuel production is properly assessed. Whatever the outcome, the judgment will have major ramifications, not just for the local Surrey community, but also the UK’s entire approach to tackling the climate crisis.”