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

Environmental impact assessment is project-centric. A project must be understood broadly enough to include its construction and operation, but assessment remains confined to effects sufficiently connected with the particular development for which consent is sought. Indirect effects are not defined by reasonable foreseeability, inevitability, attribution or but-for causation. The question is ultimately one of fact and evaluative judgment for the planning authority, subject to conventional public-law review. On the facts, refining, distributing and combusting the extracted oil involved several intervening activities and was sufficiently remote from the well-site project. The authority therefore acted lawfully in excluding downstream greenhouse gas emissions from the assessment. The absence of a later opportunity to assess those emissions did not require their assessment at this stage.

Sarah Finch challenged planning permission granted by Surrey County Council for the retention and extension of the Horse Hill Well Site, including commercial crude-oil extraction. The environmental statement assessed greenhouse gas emissions from the site but excluded emissions arising from the later refining, distribution and combustion of the oil. Holgate J dismissed the judicial-review claim in [2020] EWHC 3566 (Admin). The appeal concerned the meaning of indirect effects under Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, the relevance of an end product and downstream emissions, and the lawfulness of the council’s reasons for excluding them.

1. Appeal dismissed. The majority, comprising the Senior President of Tribunals and Lewison LJ, held that the EIA regime is directed to the particular project or proposed development. The project was the construction and operation of a well site for commercial extraction of crude oil. It did not include later refining, distribution, sale or consumer combustion.
2. The project must be construed broadly and realistically. Its use and operation may form part of the project, but the legislation requires assessment only of direct or indirect significant effects of that project. The expressions “reasonable foreseeability”, “attributable”, “inevitable” and “but for” do not provide substitute statutory tests.
3. Whether an impact is sufficiently connected to the project to be an indirect effect is a question of fact and evaluative judgment for the relevant planning authority. The court must not substitute its own view and may intervene only on conventional public-law grounds, including Wednesbury unreasonableness or a demonstrable flaw in reasoning.
4. Here, downstream emissions could not only reasonably be regarded as indirect effects requiring assessment. The oil had to pass through separate refining, transportation, distribution and sale processes before combustion. The council was entitled to regard the resulting emissions as too remote from the proposed development. The council’s reasons were adequate and intelligible. Lack of control and other regulatory regimes were relevant contextual matters, but did not independently determine the issue.
5. The council could take account of the general need for hydrocarbons in deciding the planning application while lawfully excluding downstream emissions from the EIA. There was no unlawful inconsistency. Moylan LJ dissented, considering that the commercial purpose and inevitable use of the oil created a sufficient connection and that the reasons for exclusion were legally flawed.

1. Court of Appeal (Civil Division) dismissed the appeal by a majority on 17 February 2022.
2. High Court of Justice, Queen’s Bench Division (Planning Court) dismissed the judicial-review claim in [2020] EWHC 3566 (Admin).