Surrey County Council acted lawfully when it gave planning permission for a new oil well and production facility near Gatwick Airport, the appeal court has ruled.
The council gave the permission to Horse Hill Developments in 2019, a company set up to drill for oil in the area. The project had been opposed by locals and environmentalists, and local activist Sarah Finch, in association with Friends of the Earth, had been challenging the legality of council’s actions in court.
The High Court ruled against her in December 2020. She appealed, and yesterday the Court of Appeal backed the earlier ruling.
Her lawyers argued that, under the Environmental Impact Assessment Regulations, the council should have carried out an assessment of the impact of greenhouse gas emissions resulting from the eventual use of the fuel made from the oil extracted from the site.
Giving judgment, Sir Keith Lindblom said it was correct for the council to measure the environmental impacts directly connected with the development, and not measure indirect impacts.
He said the court’s role was to examine the legality of the decision, not its actual merits.
“The task of the court in a claim such as this is only to decide the issues of law,” he said.
“Those issues cannot extend into the realm of political judgment – which is the responsibility of the executive, not the courts – or into the domain of policy-making, or into the substantive merits of the decision under challenge.”
The three-judge panel was split. Lord Justice Lewison agreed with Lindblom LJ, but Lord Justice Moylan found that “downstream” greenhouse gasses should have been measured. Lindblom LJ’s judgment was therefore backed two to one.
“I am dismayed by this judgment – but reassured it was not unanimous,” Finch said in a statement.
“The judges agreed it is inevitable that oil produced at Horse Hill will eventually be burned, and that will produce greenhouse gas emissions. The fact that even senior judges can’t agree on whether these ‘downstream’ emissions should be assessed in the planning process shows that we need legal certainty on the issue. How can planning authorities be expected to know what to do when even judges don’t agree? Every tonne of carbon dioxide emitted will make the future situation worse – and more than 10m tonnes could be produced as a result of this development.”
Friends of the Earth’s lawyer, Katie de Kauwe, said the split judgment showed that “there is not agreement, even amongst senior judges, over questions of law relating to climate change”.
“We wholeheartedly agree with the conclusion of Lord Justice Moylan, who gave the dissenting judgment in this appeal, that Surrey County Council could and should have considered the inevitable end-use emissions arising from this fossil fuel development. Planning authorities must play their part in confronting the climate crisis, or the planet will continue to hurtle towards catastrophe.”
Moylan LJ’s dissenting may be ground for a further appeal to the Supreme Court.
“Friends of the Earth is proud to have supported Sarah Finch in this crucial legal battle and will continue to do so if she appeals and this case goes to the Supreme Court,” de Kauwe said.
R (on the application of Sarah Finch on Behalf of the Weald Action Group) v Surrey County Council and others
Court of Appeal (Lewison LJ, Lindblom LJ, Moylan LJ)
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