Supreme Court allows environmental watchdog to intervene in dispute over grant of permission for oil wells

The Office for Environmental Protection (OEP) has been given permission by the Supreme Court to intervene in the appeal of R (Finch) v Surrey County Council, which concerns whether Surrey - as mineral planning authority - acted unlawfully over planning consent for oil wells.

Local activist Sarah Finch originally brought a judicial review case over Surrey’s grant of planning permission for the wells, which has subsequently been through the Court of Appeal.

The OEP said the Supreme Court will consider whether Surrey acted lawfully by not requiring the development’s environmental impact assessment (EIA) to assess the impact of greenhouse gas emissions resulting from the future combustion of oil produced by the new oil wells.

OEP general counsel Peter Ashford said: “Environmental impact assessment is so important for integrating the environment into planning decision-making.

"We are interested in this case because of the opportunity to clarify the law here to ensure proper decision-making that enhances environmental protection. We hope that the Supreme Court will take this opportunity, and will develop principles for determining the proper approach to the assessment of indirect effects under the EIA legislation.”

Commenting on the history of the case, Matthew Fraser, a barrister at Landmark Chambers, said it involved four oil wells that would produce hydrocarbons over 25 years.

Mr Fraser said Holgate J in the High Court had dismissed the claim, 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.

It decided that whether any particular impact, including the impact in this case, is truly a “likely significant effect” of the proposed development – either direct or indirect - was ultimately a matter of fact and evaluative judgment for the authority.

A majority of appeal judges found Surrey’s reasons for not requiring the EIA to assess the end-use greenhouse gas emissions to be lawful and that there was no duty on the authority to give reasons for a decision on the adequacy of an EIA.

Ms Finch gained permission to appeal to the Supreme Court following the Court of Appeal ruling.

Mr Fraser said: “In determining the direct or indirect effects, what needs to be considered is the necessary degree of connection that is required between the development and its putative effects.”

He said it was a matter of fact and evaluative judgment for Surrey as mineral planning authority to determine whether the impacts arising from greenhouse gas emissions arising from the eventual use of that oil as fuel constituted indirect effects of the project.

Mark Smulian