The Court of Appeal is this week hearing a key case on the lawful interpretation of the Environmental Impact Assessment (EIA) Regulations and the end product of developments.
The case of Finch (on behalf of the Weald Action Group) v Surrey County Council & Ors concerns Surrey's decision to grant Horse Hill Developments Ltd planning permission for the drilling and production of oil, for over 20 years, at a site in south-east Surrey near to Gatwick Airport.
In December 2020 Mr Justice Holgate found in Finch, R (On the Application of) v Surrey County Council  EWHC 3559 that the case law confirmed that EIA must address the environmental effects, both direct and indirect, of the development for which planning permission was sought, (and also any larger project of which that development forms a part), but there was no requirement to assess matters which were 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,” he said.
Lord Justice Lewison subsequently granted Ms Finch permission to appeal.
Her lawyers, Leigh Day, said she would ask the Court of Apepal to consider whether the EIA used as part of Surrey’s decision-making process should have considered the full climate impacts of the development, including greenhouse gas (GHG) emissions arising from the combustion of the oil produced at the site.
“Particularly in light of the commitments made at the global climate summit COP 26 to limit GHG emissions, this matters hugely,” it said.
Friends of the Earth, who have permission to intervene, have claimed that the High Court’s judgment is being cited by other fossil fuel developers to try to justify excluding GHG emissions that are not produced on site, “with disastrous impacts on the environment”.
Leigh Day said the appeal would centre on Surrey Council’s failure to assess the nature and magnitude of the indirect GHG emissions, known as ‘downstream’ emissions which would be caused by the combustion of oil produced by the development.
The appellant argues that these indirect emissions are “likely significant effects of the development” which should have been taken into account as part of the EIA, under regulations 4 and 18 and Paragraph 5 Schedule 4 of the Town and Country Planning (EIA) Regulations 2017.
Ms Finch’s legal team will also argue that the reasons given by the council for not requiring that assessment were inadequate (and so unlawful), because it had not evidenced what separate pollution control regimes existed, and how they would operate, to regulate those downstream emissions and absolve it of the requirement to take them into account.
Ms Finch is represented by Leigh Day, Marc Willers QC of Garden Court Chambers and Estelle Dehon of Cornerstone Barristers.
Leigh Day solicitor Rowan Smith said: “As governments around the world re-commit to step up action in response to the climate emergency, the Court of Appeal will consider a hugely important case for the future of the planet.
“Our client, and the campaigners she represents, make a simple point: Surrey Council cannot lawfully grant planning permission for the production of fossil fuels without first assessing its total climate change impact, including the carbon emitted when the fuels are burnt. Our client hopes that the Court of Appeal will reverse the earlier judgment, and conclude that planning permission ought to be quashed on that basis.”
Friends of the Earth is represented by Paul Brown QC of Landmark Chambers and Nina Pindham of No 5 Chambers.
The case is being heard by Lord Justice Lewison, Lord Justice Lindblom and Lord Justice Moylan. It is being livestreamed here.