Groundbreaking Supreme Court Decision on Environmental Assessment

On 20 June this year the Supreme Court handed down judgment in the case of R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others. 

The issue was whether Surrey County Council unlawfully granted planning permission for four new hydrocarbon wells at Horse Hill because they did not consider the downstream effects of extracting fossil fuels.

The High Court found that only the environmental effects of the development needed to be considered and not the impact of ultimate use of what would be produced.  The Court of Appeal upheld the decision (although on the basis that it was up to the planning authority to determine whether an impact is a likely significant effect as a matter of fact and judgment).  The Supreme Court, by majority judgment, found the decision to grant permission unlawful and quashed the planning permission (and unanimously disagreed with the Court of Appeal that each authority could take a decision on the scope of the effects considered on a case-by-case basis).

The Supreme Court judgment found that the relevant regulations (The Town and Country Planning (Environmental Impact Assessment) Regulations 2017) to be very broadly worded and therefore capture effects caused by eventual use of the material created by a development.  It is inevitable that the oil extracted will be refined and undergo combustion that will release green house gasses, and the amount of those gasses can be estimated.  Such environmental effects should have been considered as part of the Council’s determination of the planning application for the wells.

The precedent this case sets may well impact other potential developments that are likely to have significant effects on the environment and therefore require an environmental impact assessment, certainly applications concerning fossil fuel extraction.  This does not mean that such projects cannot be consented, but it does mean that the environmental impacts of the eventual use of the material produced as well as the development itself must be considered when determining the planning application.





Posted on 07/03/2024 by Ortolan

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