Lincolnshire oil drilling permission quashed after Supreme Court judgment in Finch

11 Jul 2024

Cornerstone Climate, Public Law and Judicial Review, Planning and Environment

In a significant early indication of the wider implications of the Supreme Court’s judgment in Finch v Surrey County Council, the decision of a Planning Inspector to grant permission for an oil exploration and drilling scheme at Biscathorpe in the Lincolnshire Wolds has been quashed. The Claimant, SOS Biscathorpe, brought an application for statutory review of the decision on five grounds. The claim was heard by Mrs Justice Farbey in June this year.

Ground 3 of the Claimant’s grounds of challenge was that the Inspector made a legal error by granting permission for the scheme without having access to information on its downstream greenhouse gas emissions as part of the project’s Environmental Impact Assessment (EIA). At the time the original application was determined by the Council, the High Court judgment in Finch had indicated that these downstream emissions should not be considered as part of the EIA process, but the position had changed by the time of the appeal hearing before an Inspector. The Court of Appeal in Finch decided that it was a matter of planning judgement whether or not to take downstream emissions into account. The Inspector was not made aware of this change, either before or during the appeal hearing, and the unrepresented local objectors, who had raised the issue of downstream emissions and the climate impact of the oil, were unaware of the change in legal position. The Inspector thus had no proper information on the extent or significance of downstream emissions before him and did not consider whether any might be necessary.

Now, after the Supreme Court judgment in Finch, the Secretary of State for Levelling-Up, Housing and Communities, and the developer, Egdon Resources Limited, have consented to judgment on Ground 3, accepting that planning permission could not lawfully be granted without information on downstream emissions being made available to the Inspector.

Arguments made during the course of the proceedings by the Secretary of State and the developer had focused on whether the Claimant was entitled to raise this point at the High Court stage. It may be an early indication of the impact of the comments by the Supreme Court in Finch on public participation in environmental decision making (see §§21, 152-154), that they no longer sought to defend Ground 3 on that basis after the judgment was handed down.

The application will now need to be redetermined. No decision was made by the Court on the Claimant’s other grounds, but the issues raised by them – concerning the interpretation of national planning policy on major developments in National Landscapes (previously AONBs) and the rationality of the weight given to the development’s contribution to national energy security and impact on oil output overseas – will also need to be considered by the decision-maker during redetermination.

Estelle Dehon KC and Dr Lois Lane acted for SOS Biscathorpe, instructed by Julia Eriksen of Leigh Day.

Six members of Cornerstone Barristers acted for various parties in Finch v Surrey County Council. For their take on the wider implications of the Supreme Court’s judgment, see our recent webinar.

About Estelle

Estelle Dehon KC is a versatile leading public law barrister with a broad practice, specialising in environment and planning law, with particular expertise in climate change, net zero and energy infrastructure.

About Lois

Lois Lane has an expansive practice with particular interest in planning, environmental, and public law. She has a growing court, inquiry and advisory practice and has appeared in the High Court.