R (on the application of Sarah Finch on behalf of the Weald Action Group) v Surrey County Council

JurisdictionEngland & Wales
JudgeLord Justice Moylan,Lord Justice Lewison
Judgment Date17 February 2022
Neutral Citation[2022] EWCA Civ 187
Docket NumberCase No: C1/2021/0261
CourtCourt of Appeal (Civil Division)
Between:
R. (on the application of Sarah Finch on behalf of the Weald Action Group)
Appellant
and
(1) Surrey County Council
(2) Horse Hill Developments Ltd.
(3) Secretary of State for Levelling UP, Housing and Communities
Respondents

and

Friends of the Earth Ltd.
Intervener

[2022] EWCA Civ 187

Before:

Lord Justice Lewison

Sir Keith Lindblom

(SENIOR PRESIDENT OF TRIBUNALS)

and

Lord Justice Moylan

Case No: C1/2021/0261

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(PLANNING COURT)

MR JUSTICE HOLGATE

[2020] EWHC 3566 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Marc Willers Q.C. and Estelle Dehon (instructed by Leigh Day) for the Appellant

Harriet Townsend and Alex Williams (instructed by Surrey County Council Legal Department) for the First Respondent

David Elvin Q.C. and Matthew Fraser (instructed by Hill Dickinson LLP) for the Second Respondent

Richard Moules (instructed by the Treasury Solicitor) for the Third Respondent

Paul Brown Q.C. and Nina Pindham (instructed by Friends of the Earth Ltd.) for the Intervener by written submissions only

Hearing dates: 16 and 17 November 2021

Approved Judgment

This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down was deemed not before 4pm on 17 February 2022

The Senior President of Tribunals:

Introduction

1

The basic question in this case is whether, under Directive 2011/92 EU of the European Parliament and of the Council (“the EIA Directive”) and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA regulations”), it was unlawful for a county council, as mineral planning authority, not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel. In my view, applying legal principles that are already fully established, it is clear that the county council did not err in law.

2

With permission granted by Lewison L.J., the appellant, Sarah Finch, appeals against the order of Holgate J. dated 23 December 2020, dismissing her claim for judicial review of the planning permission granted by the first respondent, Surrey County Council, for the retention and extension of the Horse Hill Well Site, near Horley. Ms Finch brought the challenge on behalf of the Weald Action Group. The planning permission was granted on 27 September 2019. The applicant for planning permission was the second respondent, Horse Hill Developments Ltd. The third respondent, the Secretary of State for Levelling Up, Housing and Communities, opposes the appeal. The intervener, Friends of the Earth Ltd., has made written submissions in support of Ms Finch; it had the same opportunity in the court below.

3

The task of the court in a claim such as this is only to decide the issues of law. 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. They can embrace matters of law. But they cannot call into question the decision-maker's exercise of evaluative judgment, except where the principles of public law allow. All this is well-established. And as this court has made clear several times, it applies no less to cases whose subject matter concerns greenhouse gas emissions and climate change than it does to all others (see, for example, R. (on the application of Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1954, at paragraph 52; R. (on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446, at paragraph 2; and R. (on the application of Packham) v Secretary of State for Transport [2020] EWCA Civ 1004; [2021] Env. L.R. 10, in particular at paragraphs 48 and 87).

The issues in the appeal

4

The single ground of appeal raises four issues. First, was the judge wrong to hold that the “true legal test” of whether an impact constitutes an indirect likely significant effect of the development on the environment is whether it is “an effect of the development for which planning permission is sought”? Secondly, was he wrong to hold that the EIA regulations are not directed at environmental impacts which result merely from the consumption, or use, of an “end product” – for example, a manufactured article or a commodity such as oil, gas or electricity? Thirdly, was he wrong to hold that the EIA Directive and the EIA regulations did not require the assessment of “scope 3” or “downstream” greenhouse gas emissions arising from the combustion of the refined products of the oil which would be extracted by the development? And fourthly, was he wrong to hold that the county council's reasons for not requiring an assessment of those greenhouse gas emissions were lawful?

The legislative regime under the EIA Directive and the EIA regulations

5

In April 2014, amendments to the EIA Directive were made by Directive 2014/52/EU. Recital (13) of Directive 2014/52/EU stated that “it is appropriate to assess the impact of projects on climate (for example greenhouse gas emissions) …”. The EIA Directive was amended accordingly.

6

Recital (2) of the EIA Directive refers to the “precautionary principle”. Recital (7) says that “[development] consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out”.

7

Article 1(1) states that the EIA Directive “shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment”. Article 1(2)(a) defines a “project” as meaning “the execution of construction works or of other installations or schemes” and “other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. Article 2(1) requires member states to “adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment … are made subject to … an assessment with regard to their effects on the environment”.

8

Article 3(1) states:

“1. The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 12, the direct and indirect significant effects of a project on the following factors: …”.

Five factors are identified, including “(c) land, soil, water, air and climate”.

9

Article 4(1) requires, subject to article 2(4), that projects listed in Annex I be made the subject of assessment in accordance with articles 5 to 10. Paragraph 14 of Annex I defines, as one of those types of project, the “extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500,000 cubic metres/day in the case of gas”.

10

Article 5(1) states:

“1. Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least:

(b) a description of the likely significant effects of the project on the environment;

(c) a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; …”.

Under article 5(1)(f) the developer is also required to provide the information specified in Annex IV, which includes an estimate of emissions which will be produced during the construction and operation phases (paragraph 1(d)) and a “description of the likely significant effects of the project on the environment” resulting from “the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions)” (paragraph 5(f)). Paragraph 5 requires the description to cover, among other things, the direct effects and any indirect effects “of the project”.

11

The EIA Directive was lawfully transposed into domestic law by the EIA regulations. Regulation 3 prohibits the granting of planning permission for “EIA development” unless an environmental impact assessment has been carried out for it. Under the EIA regulations, the process for environmental impact assessment includes the preparation of an “environmental statement” by the applicant for planning permission and the “reasoned conclusion [of the relevant planning authority] on the significant effects of the proposed development on the environment …”. The authority must “integrate” that conclusion into its decision whether to grant planning permission (regulations 4 and 26). Paragraph 14 of Schedule 1 replicates paragraph 14 of Annex I to the EIA Directive in identifying the “[extraction] of petroleum and natural gas for commercial purposes” above specified amounts as EIA development.

12

Regulation 4(2) provides:

“(2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors –

…;

(c) land, soil, water, air and climate;

…”.

13

By regulation 18(3), the environmental statement must contain, among other things, “(b) a description of the likely significant effects of the proposed development on the environment”, “(c) a description of the likely significant effects of the...

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