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On 17 February 2022, the Court of Appeal handed down judgment in R (Finch) v Surrey CC [2022] EWCA Civ 187, concerning a judicial review of the grant of planning permission for four new oil wells on a site in Surrey, to produce hydrocarbons over a period of 25 years. The central issue in the claim was whether the mineral planning authority, Surrey County Council (“SCC”), breached the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 by not requiring the development’s environmental impact assessment (“EIA”) to assess the effects of greenhouse gas (“GHG”) emissions resulting from the future combustion of oil produced by the development, typically as a fuel for motor vehicles. Holgate J. at first instance had dismissed the claim for judicial review. By a majority, the Court of Appeal (the Senior President of Tribunals and Lewison LJ, with Moylan LJ dissenting) dismissed the appeal. In contrast to the decision at first instance (where Holgate J. had concluded that downstream emissions could not, as a matter of law, be an effect of the development) the Court agreed that the question of whether a particular impact, such as the GHG emissions arising from the end use of the produced oil, is a “likely significant effect” of the proposed development – whether “direct” or “indirect” – is ultimately a matter of fact and evaluative judgment for the authority: see para. 40 of the lead judgment by the Senior President. At para. 41, the Senior President said:
“What needs to be considered is the necessary degree of connection that is required between the development and its putative effects.”
In response to the submission that the downstream GHG emissions might never be assessed at any stage, the Senior President said as follows at para. 68:“It can make no difference to this understanding of the legislative regime for environmental impact assessment that the impacts of "downstream" greenhouse gas emissions might not come to be assessed under that regime at some later stage. This might be the only or last opportunity for the impacts of such emissions to be assessed. Or it might not. But as Holgate J. recognised, the legislation is concerned with the development of land and the environmental effects of that development and its operation. It was not conceived as a means of ensuring that every kind of impact on the environment, even an inevitable impact, is sooner or later assessed in an environmental statement regardless of any causal connection with a "proposed development" for which planning permission is sought and an environmental impact assessment required."
The disagreement between the judges arose as to SCC’s reasons for not requiring end-use emissions to be covered by the EIA. The majority held that SCC had given adequate and intelligible reasons for not requiring the EIA to cover the end-use GHG emissions. Moylan LJ held that SCC’s reasons were legally flawed, such that he would have allowed the appeal. The judgment is available here. Horse Hill Developments Ltd, the developer, was represented by David Elvin QC and Matthew Fraser, instructed by Hill Dickinson LLP. The Secretary of State was represented by Richard Moules, instructed by the Government Legal Department. Friends of the Earth, who intervened by way of written submissions, were represented by Paul Brown QC.