R (Sarah Finch) v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 21 December 2020 |
| Neutral Citation | [2020] EWHC 3566 (Admin) |
| Docket Number | Case No: CO/4441/2019 |
| Court | Queen's Bench Division (Administrative Court) |
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[2020] EWHC 3566 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/4441/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Marc Willers QC and Estelle Dehon (instructed by Leigh Day) for the Claimant
Harriet Townsend and Alex Williams (instructed by Surrey County Council Legal Department) for the Defendant
David Elvin QC and Matthew Fraser (instructed by Hill Dickinson LLP) for the 1 st Interested Party
Richard Moules (instructed by Government Legal Department) for the 2nd Interested Party
Nina Pindham (instructed by Ms de Kauwe Solicitor) written submissions for the Intervenor
Hearing dates: 17 and 18 November 2020
Approved Judgment
Introduction
The main issue raised by this challenge is whether a developer's obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“the 2017 Regulations”) to provide an environmental statement (“ES”) describing the likely significant effects of a development, both direct and indirect, requires an assessment of the greenhouse gas (“GHG”) emissions resulting from the use of an end product said to have originated from that development.
Surrey County Council (“SCC”) granted planning permission to the First Interested Party, Horse Hill Developments Limited (“HHDL”), on the Horse Hill Well Site at Horse Hill, Hookwood, Horley, Surrey (“the site”) 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 (“the development”).
The ES assessed the GHG that would be produced from the operation of the development itself. However, this challenge concerns the non-assessment by the ES of the GHG that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere. The issue posed in [1] above arises in a very striking manner in the present case. It is agreed that once the crude oil produced from the development is transported off site it enters, in effect, an international market and the refined end product could be used anywhere in the world, far removed from the Surrey Weald.
Furthermore, the issue raised by the claimant has ramifications far beyond the legal merits of the present challenge as they relate to the production of crude oil. It would apply to the winning of other minerals for subsequent use in the generation of energy. Furthermore, 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, will generally result in GHG 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, will result in GHG emissions from the cars, vans and lorries when they are eventually purchased and driven.
Oil may be refined to produce aviation fuel. But, in addition, the manufacture of components in a number of factories, leading to the construction of aircraft in another, will result in GHG emissions, not just from each industrial process but ultimately from the use of the aircraft for aviation.
The examples of vehicle and aircraft production also illustrate a further point. The GHG emissions eventually resulting from the use of those products (in those cases for transportation) will flow not from just one source, but from a number of different contributing sources. They may include sites for the production of raw materials, sites for the manufacture of components, sites for the assembly of the products and sites for distribution of those products.
The issue raised in the present challenge may also arise in the case of other industries. For example, each of the successive stages which may be involved in the handling of waste, recycling, recovery and disposal to landfill can generate GHG.
Mr Marc Willers QC who, together with Ms. Estelle Dehon, appeared on behalf of the claimant, acknowledged that if the court should decide in the present case that GHG emissions from the combustion of oil products resulting from the extraction at the site had to be assessed as an “indirect effect” in the ES relating to the development permitted by SCC, then the same must hold good for the other examples referred to above, and for GHG emissions generally resulting from the use or consumption of end products emanating from a development. Indeed, Mr Willers QC submitted that this court is obliged so to hold by virtue of decisions of the Court of Justice of the European Union (“CJEU”).
The response of the international community and the UK Government to the global problem of climate change has been summarised in a number of cases, notably R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 at [558–592]; R (Plan B Earth) v Secretary of state for Transport [2020] PTSR 1446 at [187] to [195] and [205] to [216]; and R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 at [83] to [87].
The UK Government's fundamental objective in relation to climate change is enshrined in s.1(1) of the Climate Change Act 2008 (“CCA 2008”) which, as amended with effect from 27 June 2019, imposes a duty on the Secretary of State to ensure that the net UK carbon account for 2050 is at least 100% lower than the 1990 baseline. This is generally referred to as “the net zero target”.
It goes without saying that the extraction of crude oil resulting in the supply of fuel will result in GHG emissions when that end product is used. It is common ground that that is addressed by Government policy on climate change and energy, aimed inter alia at reducing the use of hydrocarbons. The issue raised in the present challenge is whether, by virtue of the 2017 Regulations, it was necessary for the planning authority to go further than apply those policies in its decision on whether to grant planning permission for the development, by requiring those GHG emissions to be estimated and assessed as part of the Environmental Impact Assessment (“EIA”) of the development.
This challenge arises because those opposed to the development have serious concerns about the effects which the extraction and use of hydrocarbons has on climate change. At this point it is important to emphasise the nature of the court's role in dealing with an application for judicial review. As the Divisional Court recently stated in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin) at [6]:-
“It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully”.
Procedural history and grounds of challenge
The claimant's Statement of Facts and Grounds raised a number of grounds in addition to the main issue already identified, including a failure to take into account the impact of the development on seismicity and on the openness of the Green Belt. It was also said that SCC had failed to give adequate reasons on principal important, controversial issues.
The application for permission to apply for judicial review was refused by Laing J on the papers and by Lang J at a renewed hearing. On 15 July 2020 Lewison LJ granted permission to apply for judicial review in relation to grounds 1(a) and (b). He also identified an oblique challenge in the claimant's skeleton to national planning policy on the ground that it is not in conformity with EU law. He stated that that was a point of some importance which ought to be considered at a full hearing. The claim then proceeded in the High Court pursuant to CPR 52.8(6).
In September 2020 the High Court ordered the amendment of the Statement of Facts and Grounds to reflect the order of Lewison LJ. Grounds (2) to (5) as originally pleaded were deleted and new grounds were added to address the issue identified in the order granting permission.
By an order made on 20 October 2020 the Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) was joined as the Second Interested Party, to respond to the new grounds relating to national planning policy. In addition, Friends of the Earth Limited was granted permission to intervene by way of written submissions.
As amended, the grounds of challenge are now as follows:-
(1) SCC failed to comply with the obligations of Directive 2011/92/EU (as amended) (“the EIA Directive”) and the 2017 Regulations by:-
(a) failing to assess the indirect GHG impacts of the development...
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