EIA in a climate emergency
R (Finch) v Surrey CC  EWHC 3566 (Admin)
On 21 December 2020, Mr Justice Holgate dismissed this challenge to the grant of planning permission for the commercial extraction of oil at Horse Hill in Surrey.
The main issue in the case concerned the adequacy of the environmental impact assessment (“EIA”) required by the Town and Country Planning (EIA) Regulations 2017 and focused on the requirement to include within the EIA an assessment of the “indirect significant effects” of the development on, amongst other things, the climate.
The claimant argued that the EIA had to include an assessment of the GHG emissions caused by the combustion of fuel for which the extracted crude oil is a raw material. The planning authority’s Scoping Opinion had initially recommended that the Environmental Statement address this matter, but had subsequently accepted the developer’s rationale for not doing so.
As Holgate J noted at paragraph 4 of his judgment, “the issue raised by the claimant has ramifications far beyond the legal merits of the present challenge as they relate to the production of crude oil.”
In a detailed judgment which (at paragraphs 114-118) looks carefully at the often-cited paragraphs of Abraham v Walloniaand includes a concise review of the more recent authorities on the scope and adequacy of EIA, Holgate J accepted the arguments of those defending the decision. At paragraph 126, Holgate J concluded:
“The upshot is that the case law confirms that EIA must address the environmental effects, both direct and indirect, of the development for which planning permission is sought, (and also any larger project of which that development forms a part), but there is no requirement to assess matters which are 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. I therefore conclude that, in the circumstances of this case, the assessment of GHG emissions from the future combustion of refined oil products said to emanate from the development site was, as a matter of law, incapable of falling within the scope of the EIA required by the 2017 Regulations for the planning application.”
The Judge held, not merely that the planning authority was entitled to exclude downstream emissions from assessment, but that in this case it could not have required the developer to include them, since they were “incapable of falling within the scope of EIA”. If incorrect on that principal finding, Holgate J also held that the planning authority had reached a lawful decision to exclude them (paragraphs 127-132).
The judgment is available here.
The Claimant was represented by Estelle Dehon, led by Marc Willers QC; the Defendant planning authority was represented by Harriet Townsend, leading Alex Williams. Other parties were represented by David Elvin QC, Matthew Fraser, and Richard Moules.
The Claimant has sought permission to appeal.