Finch, R. (on the application of) v Surrey County Council

Environmental impact assessment must address the likely significant direct and indirect effects of the particular development or project for which consent is sought. It does not extend to environmental effects arising from consumers’ later use of an end product made elsewhere from a raw material extracted by that development, where the later activities are separate developments and locations are unknown. The inevitability of those effects does not provide the legal test.

A planning authority may exercise judgment about the scope of assessment, subject to judicial review on ordinary public-law grounds, including irrationality. National planning policies concerning separate pollution-control regimes do not authorise authorities to disregard relevant effects, but may inform the judgment about the project and effects requiring assessment.

Surrey County Council granted Horse Hill Developments Limited planning permission to retain and expand an oil well site and produce hydrocarbons over approximately 25 years. The environmental statement assessed greenhouse gas emissions from construction and operation at the site, but not emissions from the later combustion of refined oil products.

The claimant sought judicial review, arguing that the downstream emissions were indirect effects requiring assessment under Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. She also challenged the treatment of national planning policy and argued that the relevant policies were unlawful. The central issue was whether downstream combustion emissions were effects of the permitted development.

1. Claim dismissed. The court held that the relevant project was the development authorised by the planning permission: extraction and production of crude oil at the Horse Hill site. It was not a larger project comprising later refining, distribution and consumption.
2. The 2017 Regulations require assessment of the likely significant direct and indirect environmental effects of the development, including effects of a larger project where separate applications have artificially divided one overall project. They do not require assessment of environmental effects resulting from consumers’ use of an end product made at a separate facility from material supplied by the development.
3. The fact that crude oil would inevitably be refined and eventually combusted did not establish that the resulting emissions were effects of the development. The relevant question was whether the effect was an effect of the development for which planning permission was sought. The claimant’s approach supplied no workable criterion for identifying the limits of indirect effects.
4. Abraham v Wallonia and Ecologistas en Acción-CODA v Ayuntamiento de Madrid concerned the environmental effects of increased use of infrastructure enabled by works forming part of the project. They did not require assessment of consumers’ later use of a commodity produced from a raw material extracted by a separate development.
5. The scoping opinion did not determine conclusively what the environmental statement had to contain. Regulation 18(4)(a) required the statement to be based on the opinion, while regulations 18(3) and 18(4)(b) imposed the substantive information requirements.
6. Even if downstream emissions could legally fall within the possible scope of assessment, SCC’s decision not to require their assessment was rational. The authority properly focused on the character and extent of the permitted land-use development. The remaining grounds failed because no estimate of downstream emissions was legally required and the national policies did not purport to limit the statutory scope of EIA.

First-instance judicial review in the High Court (Administrative Court). Permission was granted by Lewison LJ on limited grounds, but the claim was dismissed by Holgate J.