Environment regulator urges Supreme Court to clarify law on assessing indirect effects of developments
The Office for Environmental Protection (OEP) has filed written submissions in its intervention in the appeal of R (Finch) v Surrey County Council, which involves a judicial review of the grant of planning permission for new oil well development at a site in Surrey.
According to the OEP, the Supreme Court will consider whether the county council acted lawfully by not requiring that the developer’s environmental statement includes an assessment of the impact of downstream or ‘scope 3’ greenhouse gas emissions resulting from the future combustion of oil produced by the development.
Surrey granted planning permission in 2019 to Horse Hill Developments Limited on the Horse Hill Well Site at Horse Hill, Hookwood, Horley, Surrey to retain and expand the site (including two existing wells), and to drill four new wells, for the production of hydrocarbons over a period of 25 years..
A local activist challenged the decision, but Holgate J ultimately dismissed the claim at the High Court, holding that downstream emissions could not as a matter of law be an effect of the development for the purposes of an EIA.
The Court of Appeal though said it was not possible to say that such impacts are legally incapable of being an effect requiring assessment in an EIA.
The OEP's submission argues that the Court of Appeal decision was wrong in law in categorising the question as one of fact and judgment only. “The suggestion that a decision contrary to that of the majority in the Court of Appeal would result in unmanageable requirements is both misconceived and exaggerated,” it adds.
In a statement, the OEP said its submissions "highlight our concern that the previous court decisions in this case leave the law on environmental impact assessment (EIA) in an uncertain position.
"This potentially has adverse effects on sound environmental decision making, so risks undermining environmental protection and improvement."
The OEP submissions argue for the Supreme Court to take the opportunity presented by the appeal to clarify the law on assessing the indirect effects of developments in general, and their ‘scope 3’ greenhouse gas emissions in particular.
The regulator submits that this can be done by taking a principled approach to the meaning of the term ‘indirect effect’ in the relevant EIA legislation.
The OEP emphasised that it is not taking sides between the parties. Its submissions can be downloaded here.
The Supreme Court is set to hear the appeal on 21 and 22 June 2023.
Adam Carey
