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

Environmental impact assessment must address the likely significant environmental effects of the proposed project, including its operation. Whether an impact is an indirect effect depends on a sufficiently close causal connection with that project. This is a question of fact and evaluative judgment for the planning authority, subject to conventional public law review. Inevitability, reasonable foreseeability and developer control do not independently determine the answer.

Downstream emissions from burning refined oil are legally capable of being indirect effects of an extraction project. Their assessment is neither invariably required nor invariably excluded. Intervening refining, distribution and consumption processes may provide a lawful basis for excluding them in particular circumstances. Technical feasibility of assessment and the absence of another assessment opportunity do not independently enlarge the statutory obligation.

Sarah Finch, acting on behalf of the Weald Action Group, challenged planning permission granted by Surrey County Council, the mineral planning authority, to Horse Hill Developments Ltd. The permission authorised retention and extension of an existing well site, additional wells and associated facilities, enabling hydrocarbon production over 25 years.

The council's scoping opinion recommended consideration of the global warming potential of the oil and gas produced. The developer's environmental statement assessed greenhouse gas emissions from the well site but excluded emissions from the eventual combustion of refined oil products. The council accepted that approach. It was common ground that the extracted oil would eventually be refined and combusted, producing greenhouse gas emissions.

Holgate J. dismissed the judicial review claim in [2020] EWHC 3566 (Admin). He held that the downstream emissions fell outside the statutory assessment obligation and, alternatively, that their exclusion was a lawful evaluative decision. The Secretary of State opposed the appeal, while Friends of the Earth Ltd. intervened in support of the appellant. The central issue was whether excluding downstream emissions complied with the environmental impact assessment legislation.

Appeal dismissed by a majority, Sir Keith Lindblom and Lewison L.J.; Moylan L.J. dissenting.

1. The concepts of project and proposed development required a broad and realistic interpretation. They encompassed construction and operation of the well site for commercial oil extraction. Commercial purpose alone did not define the project or its environmental effects. Refining, distribution and consumption were separate activities. Nevertheless, downstream combustion emissions were legally capable of being indirect effects of the extraction project. The majority rejected the judge's conclusion that their assessment was legally impossible (paras 32–43, 141).

2. Under regulation 4(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, the essential inquiry was whether a sufficiently close causal connection existed between the project and the environmental impact. This was a question of fact and evaluative judgment for the planning authority. Inevitability could be relevant but did not compel inclusion. Reasonable foreseeability and but-for causation could not replace the statutory language. Review proceeded on conventional public law grounds, including irrationality, without substitution of the court's judgment: R. (on the application of Friends of the Earth Ltd.) v Heathrow Airport Ltd. applied (paras 39–43, 57–64, 141).

3. The council could reasonably conclude that intervening refining, transportation, distribution and consumption sufficiently separated the downstream emissions from this project. R. (on the application of Squire) v Shropshire Council concerned manure produced by the development and used without comparable intermediate processes. The decision did not establish a universal obligation to assess emissions from consuming products derived from extracted materials. Other hydrocarbon projects might require wider assessment; that question remained open (paras 48–49, 65–67).

4. Developer control and off-site location were relevant but not determinative. Neither technical feasibility of estimating emissions nor the possibility that no later assessment would occur independently required assessment now. Other pollution control regimes did not themselves justify omitting environmental effects of the project (paras 68–71, 87, 147).

5. The council's explanation had to be read realistically and in context. Its essential conclusion concerned the absence of the necessary causal connection. No elaborate reasons were required, and the references to control and regulatory regimes disclosed no legal error. Lewison L.J., considering the documents together, concluded with hesitation that the reasons were sufficient. Considering national hydrocarbon need in the planning merits was compatible with lawfully excluding downstream emissions from environmental assessment (paras 82–92, 146–149).

6. Moylan L.J. considered that the commercial purpose and inevitable combustion of the oil required cogent reasons for exclusion. The adopted reasons contained demonstrable flaws concerning off-site use, control and assumed regulatory protection. He would have allowed the appeal, while agreeing that assessment was not invariably required as a matter of law (paras 127–140).

• Court of Appeal (Civil Division): [2022] EWCA Civ 187 . Dismissed the appeal by a majority. Upheld the dismissal of the claim on the basis that the council's evaluative decision was lawful, while rejecting the conclusion that downstream emissions were legally incapable of assessment.
• High Court, Queen's Bench Division (Planning Court): [2020] EWHC 3566 (Admin) . Holgate J. dismissed the judicial review claim. He held that assessment of downstream combustion emissions fell outside the statutory obligation and, alternatively, that their exclusion was lawful.