Court of Appeal – by majority – rejects appeal over grant of planning permission for oil wells and EIA assessment of downstream greenhouse gas emissions

The Court of Appeal has – by a 2-1 majority – rejected a claim that it was unlawful for Surrey County Council, as mineral planning authority, not to require the environmental impact assessment (EIA) for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.

The appellant in Finch On Behalf of the Weald Action Group, R (On the Application Of) v Surrey County Council & Ors [2022] EWCA Civ 187, Sarah Finch, had brought a claim on behalf of the Weald Action Group for judicial review of the planning permission granted by Surrey on 27 September 2019 for the retention and extension of the Horse Hill Well Site, near Horley.

In the High Court Mr Justice Holgate dismissed the claim in December 2020.

Dismissing Ms Finch's appeal, the Senior President of Tribunals, Sir Keith Lindblom, said: “In my view, applying legal principles that are already fully established, it is clear that the county council did not err in law.”

Lord Justice Lewison agreed with the Senior President that the appeal should be dismissed, although he admitted that what he had found more difficult was the question whether the decision that Surrey in fact took was a lawful one.

However, Lord Justice Moylan concluded that the reasons given by the county council, for deciding that the greenhouse gas emissions were not an effect of the development at Horse Hill Well Site, were legally flawed.

A Surrey County Council spokesperson said: “We note the judgement that our planning decision was lawful. We will review and consider the full findings of the judgment in due course.”

Sarah Finch said: “I’m dismayed by this judgment – but reassured it was not unanimous. The judges agreed it’s inevitable that oil produced at Horse Hill will eventually be burned, and that will produce greenhouse gas emissions. The fact that even senior judges can’t agree on whether these ‘downstream’ emissions should be assessed in the planning process shows that we need legal certainty on the issue. How can planning authorities be expected to know what to do when even judges don’t agree? 

“Every tonne of carbon dioxide emitted will make the future situation worse – and more than 10 million tonnes could be produced as a result of this development.”

Rowan Smith, Leigh Day environmental law solicitor who represented Sarah Finch, said: Our client’s courageous campaign to protect the environment from the climate crisis has been rewarded: there is now Court of Appeal authority that, when decision-makers come to consider granting planning permission for fossil fuel projects, they may be required by the law to be assess the greenhouse gas emissions from the use of the extracted oil, coal or gas. This is a hugely important legal victory in the context of wider climate change litigation in the UK.

“Nevertheless, we consider that the overall judgment, given in the context of UK’s obligations to make urgent and deep cuts to carbon emissions in order to reach net zero by 2050, is flawed and we are advising our client on an application to the Supreme Court for permission to appeal.”