Last reviewed 21 June 2021
On 21 December 2020, the High Court gave judgment in the case of R (on the application of Finch) v Surrey County Council. The case concerned an application for judicial review of the decision to grant planning permission related to oil wells.
Surrey County Council decided to grant planning permission to Horse Hill Developments Ltd on the Horse Hill Well Site at Hookwood, Horley, to retain and expand an oil well site, and to drill four new oil wells for the production of hydrocarbons over a 25-year period. The council provided an environmental impact assessment (EIA) which assessed greenhouse gases which would be emitted from the operation of the development. It did not assess greenhouse gases which would be emitted when the crude oil produced from the development would be used by consumers, including as fuel for motor vehicles, following refinery elsewhere than the development. F sought judicial review of the decision.
The issue in the case was whether the obligation of a developer under the 2017 Regulations, to provide an environmental statement related to the likely significant effects of a development, both direct and indirect, included a requirement to assess greenhouse gas emissions resulting from the use of end products originating from the development.
The application was refused.
The fact that the environmental effects of the consumption of an end product would inevitably result from the use of raw material in the production of that end product did not provide a legal test for deciding whether those effects could properly be regarded as effects of a proposed development for the purposes of regulation 4 of the 2017 Regulations.
The true legal test was whether an effect on the environment was an effect of the development subject to planning permission. An inevitable consequence might result after raw material extracted from the site had passed through one or more developments which were not part of the same project.
In the present case, when the crude oil produced from the development was transported from the site it became an indistinguishable part of the international oil market. The refined end product could be used anywhere in the world. Greenhouse gas emissions generated by vehicles could not be attributed to any particular oil well or site.
The issue raised in the case had ramifications beyond the legal merits of the challenge as it related to the production of crude oil. It would apply to the production of other material for subsequent use in the generation of energy. The extraction of minerals or the production of raw materials for use in industrial processes, leading eventually to the consumption or use of an end product, would generally result in greenhouse gas emissions at each stage. For example, the production of metals, followed by their use to manufacture parts for motor vehicles and the assembly of such vehicles, would result in greenhouse gas emissions from the cars, vans and lorries when they were eventually purchased and driven.
The EIA had to deal with both direct and indirect effects of a proposed development. Indirect effects related to less immediate consequences, but there had to be effects which the development itself had on the environment.
Development control and the environmental impact assessment process were concerned with the use of land for development and the effects of that use. They were not concerned with environmental effects resulting from the consumption or use of an end product.
The scope of an EIA did not include the effects of consumers using an end product made in a separate facility from materials supplied by the assessed development.
There was no legal requirement for the amount of greenhouse gas emissions from the combustion of refined oil products to be estimated in an EIA and therefore there was no requirement for that estimate to be compared to any greenhouse gases or climate change metric.
The local authority had not misinterpreted national policy and guidance.
The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 applied the EU Environmental Impact Assessment Directive to the English planning system. The 2017 Regulations govern the process of an EIA.
The aim of EIA is to protect the environment by ensuring that a local planning authority, when deciding whether to grant planning permission for a project which is likely to have significant effects on the environment, does so in the full knowledge of the likely significant effects and takes this into account in the decision-making process. The Regulations set out a procedure for identifying those projects which should be subject to an EIA and for assessing, consulting and coming to a decision on those projects which are likely to have significant environmental effects.
An EIA must deal with factors such as human health, biodiversity, land, water and climate, cultural heritage and landscape.
EIA also aims to ensure early and effective public participation in decision-making procedures. Local authorities and developers should carefully consider whether projects should be subject to an EIA. If an EIA is required, its scope should be limited to aspects of the environment which are likely to be significantly affected.
The stages of an EIA are as follows.
Screening: to decide whether a project falls within the scope of the 2017 Regulations, whether it is likely to have a significant effect on the environment and requires an assessment.
Scoping: deciding the extent of issues to be considered in the EIA.
Preparing an Environmental Statement: an Environmental Statement must be prepared by competent experts and must include information required to assess the likely significant environmental effects of the development.
Consultation: the Environmental Statement must be publicised electronically and by public notice. Statutory consultation bodies and the public must be given the opportunity to state their views.
Decision making: the Environment Statement must be taken into account by the local authority and/or the Secretary of State in deciding whether or not to grant consent for the development.
A broader interpretation of the scope of EIA in the Finch case could have involved an analysis of the refining process and the use of refined products on a global basis. Further, such an interpretation could mean that the environmental effect of the extraction of any mineral must be assessed in relation to any end use of the mineral. This could also involve assessment of the emission of particulates and nitrous oxide as well as greenhouse gases.