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

An environmental impact assessment for a project to extract fossil fuels must assess greenhouse gas emissions from the fuel's inevitable combustion where those emissions are likely, significant and capable of meaningful assessment. The assessment is not confined to emissions generated at the project site or within the developer's control.

Intermediate processes, geographical distance and the existence of other regulatory regimes do not break a clear causal connection or remove the assessment duty. National policy may influence whether development consent is granted, but it cannot narrow the required environmental information. The assessment procedure must enable the authority and the public to consider the project with full knowledge of its environmental consequences.

R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others concerned planning permission for commercial oil extraction at Horse Hill in Surrey. The project was expected to produce about 3.3 million tonnes of oil. Its environmental statement assessed greenhouse gas emissions generated at the well site but omitted the much larger emissions that would inevitably arise when the oil was refined and burnt.

The High Court dismissed the judicial review claim: [2020] EWHC 3566 (Admin). A majority of the Court of Appeal dismissed the appeal, holding that the council could reasonably find that the combustion emissions lacked a sufficient causal connection with the project: [2022] EWCA Civ 187.

The central issue was whether the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, interpreted consistently with Directive 2011/92/EU, required the environmental impact assessment to include the significant climate effects of the oil's inevitable combustion.

1. Appeal allowed by a majority of three to two. Lord Leggatt, with whom Lord Kitchin and Lady Rose agreed, held that the council acted unlawfully by granting planning permission without assessing the greenhouse gas emissions that would arise from combustion of the extracted oil.

2. An environmental impact assessment is procedural. It ensures that development consent is considered with full knowledge of the project's likely significant environmental effects and through informed public participation. The authority may still permit environmentally harmful development, but national policy or an expectation that the information will not alter the decision cannot reduce the required assessment.

3. The identification of an “effect of a project” is a question of causation informed by the language and purpose of the legislation. Only effects which evidence shows are likely and capable of meaningful assessment need be included. Speculative or conjectural effects are excluded, and rational decision-makers may sometimes differ about likelihood or assessability.

4. Here, the causal connection admitted only one lawful answer. Extraction would initiate an inevitable chain leading to refinement, combustion and quantifiable emissions. Extraction was both necessary and sufficient to bring about combustion. The emissions were therefore effects of the project and had to be assessed under article 3(1) of Directive 2011/92/EU and the corresponding provisions of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

5. The legislation covers direct and indirect, remote and transboundary effects. An effect is not excluded because it occurs away from the site, outside the operator's control, or after intermediate commercial activities. Refinement did not alter the oil's basic nature or intended use and did not break the causal chain. This conclusion did not make assessment open-ended: unlike oil, materials with many possible uses may have downstream effects that are too indeterminate or incapable of meaningful estimation.

6. Planning policy allowing reliance on other pollution-control regimes did not remove the assessment duty. Expected mitigation must be described alongside the significant effects to which it relates. No identified regime could prevent the combustion emissions, which were unavoidable if extraction proceeded.

7. Article 7's inter-state consultation procedure did not apply. Global climate effects are not effects specific to another state, even if the emissions themselves occur abroad.

8. Lord Sales, with whom Lord Richards agreed, dissented. He considered the Directive project-focused and held that downstream emissions from refinement and consumer use fell outside its scope as a matter of law. In his view, such emissions were addressed through national climate policy, and requiring local authorities to assess them would distort the Directive's scheme and impose disproportionate burdens.

1. United Kingdom Supreme Court: By a majority of three to two, allowed the appeal and held the grant of planning permission unlawful: [2024] UKSC 20.
2. Court of Appeal: By a majority, dismissed the claimant's appeal. It held that whether the combustion emissions had a sufficient causal connection with the project was an evaluative matter for the council and that its conclusion was lawful: [2022] EWCA Civ 187; [2022] PTSR 958.
3. High Court: Dismissed the judicial review claim, holding principally that combustion emissions were legally incapable of being effects of the project and, alternatively, that the council's contrary assessment was not irrational: [2020] EWHC 3566 (Admin); [2021] PTSR 1160.