Town and country planning – Environment – Environmental statement – Appellant applying for judicial review of respondent local authority’s decision to grant planning permission to retain and expand existing oil well site and drill four new oil wells for producing hydrocarbons – Court dismissing appeal – Appellant appealing – Whether environmental impact assessment required to assess effects of greenhouse gas emissions resulting from future combustion of oil produced by development – Appeal dismissed
The respondent local authority granted planning permission to the first interested party, on the Horse Hill Well Site at Hookwood, Horley, Surrey, to retain and expand the site (including two existing wells), and drill four new wells, for the production of hydrocarbons over a 25-year period.
An environmental statement 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 appellant applied for judicial review of the respondent’s decision contending that, under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations), the respondent should have carried out an assessment of the impact of GHG resulting from the eventual use of the fuel made from the oil extracted from the site.
The judge dismissed the application finding that the GHG emissions from future combustion of the refined oil products were, as a matter of law, incapable of falling within the scope of the requisite environmental impact assessment (EIA). Further, the “true legal test” of whether an effect constituted an indirect likely significant effect of the development on the environment was whether an effect on the environment was an effect of the development for which planning permission was sought: [2020] EWHC 3566 (Admin); [2020] PLSCS 234. The appellant appealed.
Held: The appeal was dismissed.
(1) While a broad and purposive approach to the interpretation of EU legislation was appropriate, it always had to respect the words actually used. The legislation for EIA was directed at a project of development. A broad interpretation had to be applied to the concept of a “project”. An assessment of the “likely significant effects of the project on the environment” under Directive 2011/92 EU (the EIA Directive) extended to the effects of the use of the works as well as their construction.
Crucially, an EIA had to address the particular development under consideration, not some further or different project. The existence and nature of “indirect”, “secondary” or “cumulative” effects would always depend on the particular facts and circumstances of the development under consideration. Where an EIA had to address the “indirect” effects of a proposed development, it had to include a sufficient assessment of such effects.
Establishing what information should be included in an environmental statement, and whether that information was adequate, was for the relevant planning authority, subject to the court’s jurisdiction on conventional public law grounds. The applicable standard of review had consistently been held to be the Wednesbury standard which, in its modern application, had been elucidated by the Divisional Court in R (on the application of the Law Society) v The Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649.
(2) The “direct and indirect significant effects of a project” in article 3(1) of the EIA Directive, the “likely significant effects of the project” in paragraph 5 of Annex IV, the “direct and indirect significant effects of the proposed development” in regulation 4(2) of the EIA Regulations and the “likely significant effects of the proposed development” in regulation 18(3)(b) did not need any paraphrase or gloss. In the absence of definitions in the legislation, they had to be understood as they were expressed. Substituting terms such as “reasonably foreseeable [effects]” or “attributable [effects]” for the wording actually used was inapt. There was no place for the concept of “reasonable foreseeability” in the EIA Directive and the EIA Regulations. If the “relevant planning authority” acted on a correct understanding of the legislation, the question whether a particular impact on the environment was truly a “likely significant [effect]” of the proposed development (be it a direct or indirect effect) was ultimately a matter of fact and evaluative judgment for the authority.
(3) The question whether an environmental impact was an effect of the development for which planning permission was sought was not a “true legal test”. Rather, consideration needed to be given to the degree of connection between the development and its putative effects. The GHG emissions from future combustion of the refined oil products were not, as a matter of law, incapable of falling within the scope of the EIA.
It followed that the outcome of the appeal turned not on the legal possibility of a conclusion to that effect, but on the lawfulness of the decision the respondent ultimately reached that “scope 3” or “downstream” GHG were not “indirect significant effects of the proposed development”. The downstream emissions of hydrocarbon development might properly be regarded as indirect environmental effects, depending on the specifics of the project. In the particular circumstances of this case, the respondent’s decision to exclude downstream GHG emissions from the EIA was lawful.
(Per Moylan LJ dissenting) The reasons adopted by the respondent did not support the conclusion that “scope 3” emissions were not indirect effects of the proposed development. They did not support the conclusion that “the necessary causal connection between the proposed development and the impact of scope 3 greenhouse gas emissions was absent. The decision to exclude from assessment all but the direct releases of GHG from within the well site boundary was based on demonstrable flaws in the reasoning such that the decision was legally flawed. The EIA did not comply with the requirements of the EIA Regulations and planning permission could not lawfully be given.
Marc Willers QC and, Estelle Dehon (instructed by Leigh Day) appeared for the appellant; Harriet Townsend and Alex Williams (instructed by Surrey County Council) appeared for the first respondent; David Elvin QC and Matthew Fraser (instructed by Hill Dickinson LLP) appeared for the second respondent; Richard Moules (instructed by the Government Legal Department) appeared for the third respondent; Paul Brown QC and Nina Pindham (instructed by Friends of the Earth Ltd) made written submissions for the intervener.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Finch) v Surrey County Council
