Town and country planning – Environment – Environmental statement – Claimant applying for judicial review of defendant local authority’s decision to grant planning permission to retain and expand existing oil well site and drill four new oil wells for production of hydrocarbons over a period of 25 years – Whether environmental impact assessment required to assess effects of greenhouse gas emissions resulting from future combustion of oil produced by development – Application dismissed
The defendant local authority granted planning permission to the first interested party, on the Horse Hill Well Site at Horse Hill, Hookwood, Horley, Surrey, to retain and expand the site (including two existing wells), and to drill four new wells, for the production of hydrocarbons over a period of 25 years.
An environmental statement was provided which assessed the greenhouse gases (GHG) that would be produced from the operation of the development, but did not assess the GHG that would be emitted when the crude oil produced from the site was used by consumers, typically as fuel for motor vehicles, after having been refined elsewhere. It was agreed that once the crude oil produced from the development was transported off site it entered, in effect, an international market and the refined end product could be used anywhere in the world, far removed from the Surrey Weald.
The claimant applied for judicial review of the defendant’s decision. The issue was whether a developer’s obligation, under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, to provide an environmental statement describing the likely significant effects of a development, both direct and indirect, required an assessment of the GHG emissions resulting from the use of an end product said to have originated from that development.
Held: The application was dismissed.
(1) The fact that the environmental effects of consuming an end product would flow inevitably from the use of a raw material in making that product did not provide a legal test for deciding whether they could properly be treated as effects of the development on the site where the raw material would be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site might have environmental consequences remote from that development but which were nevertheless inevitable. The true legal test was whether an effect on the environment was an effect of the development for which planning permission was sought. An inevitable consequence might occur after a raw material extracted on the relevant site had passed through one or more developments elsewhere which were not the subject of the application for planning permission and which did not form part of the same project.
The case law confirmed that an EIA had to 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 formed a part), but there was no requirement to assess matters which were not environmental effects of the development or project. The scope of that obligation did not include the environmental effects of consumers using (in locations which were unknown and unrelated to the development site) an end product which would be made in a separate facility from materials to be supplied from the development being assessed. 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: R (on the application of Blewett) v Derbyshire County Council [2003] PLSCS 252; [2004] Env LR 29, R (on the application of Brown) v Carlisle City Council [2010] PLSCS 141; [2011] Env LR 71, Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] PLSCS 8; [2018] Env LR 440, H J Banks & Co Ltd v Secretary of State for Housing, Communities and Local Government [2018] PLSCS 210; [2019] Env LR 433, R (on the application of Squire) v Shropshire Council [2019] EWCA Civ 888; [2019] EGLR 26 and Gathercole v Suffolk County Council [2020] EWCA Civ 1179; [2020] PLSCS 169 considered.
(2) Given that there was no legal requirement for the amount of GHG emissions from the combustion of refined oil products to be estimated in the EIA of the proposed development, it followed that there was no requirement for that estimate to be compared to any GHG or climate change metric.
The court might review the consideration given to a planning application by a planning authority to see whether the authority failed to take into account a relevant policy which it was legally obliged to consider, or whether it had misinterpreted the language of a relevant policy. Taken overall, it would be impossible for the court to say in this case that the planning committee did not have an adequate picture of relevant policies, or that any policy was misinterpreted.
(3) Contrary to the claimant’s argument, the defendant had not misinterpreted paragraph 183 of the National Planning Policy Framework and paragraphs 12 and 112 of the Minerals Planning Practice Guidance, as allowing the downstream GHG emissions from the combustion of refined oil products to be excluded from the EIA for the development. The national policies in question did not purport to limit the scope of an environmental statement or EIA under the 2017 Regulations and so there was no question of those policies being unlawful on the grounds of conflict with the Council Directive 2011/92 (the EIA Directive) or the Regulations: R (on the application of Friends of the Earth) v North Yorkshire County Council [2017] Env LR 497; [207] PLSCS 1 considered.
Marc Willers QC and, Estelle Dehon (instructed by Leigh Day) appeared for the claimant; Harriet Townsend and Alex Williams (instructed by Surrey County Council) appeared for the defendant; David Elvin QC and Matthew Fraser (instructed by Hill Dickinson LLP) appeared for the first interested party; Richard Moules (instructed by the Government Legal Department) appeared for the second interested party; Nina Pindham (instructed by Friends of the Earth) appeared for the intervener.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Finch) v Surrey County Council
