Planning Authorities Must Assess “Downstream” Greenhouse Gas Emissions When Granting Permission For New Fossil Fuel Production Facilities

Finch v Surrey County Council [2024] UKSC 20

In a judgment that will have significant repercussions in environmental and planning law, the Supreme Court ruled that the grant of planning permission for an oil production facility in Horse Hill, Surrey was unlawful, due to the failure by the planning authority to assess the effects of “downstream” greenhouse gases that would “inevitably” be produced from the eventual use and combustion of that oil.

In reviewing planning applications, planning authorities and applicants are required to consider both the direct and indirect effects of a development, including as part of an Environmental Impact Assessment. In the case of the Horse Hill site, the planning application for four new oil wells did not assess the impact of “downstream” greenhouse gas emissions that would be produced as an ultimate result of the oil being extracted. Nonetheless, the application was granted by Surrey County Council.

Sarah Finch, a local campaigner, brought a challenge against this decision, but was unsuccessful before both the High Court and the Court of Appeal, finally appealing to the Supreme Court.

In considering what are to be included within the “direct and indirect” effects of a development, Lord Leggatt held that this was essentially a question of causation, and for the case of the proposed Horse Hill oil well, this test was plainly met by the downstream production of greenhouse gas emissions: but for the extraction of oil at Horse Hill, the oil would stay in the ground, not be refined and not be combusted.

Additionally, extraction of oil alone was held to be sufficient for this result (rather than also requiring refinement to occur at the site) because it was considered inevitable that the extracted oil would ultimately be combusted, producing greenhouse gas emissions.

Having not properly assessed these effects as part of the Environmental Impact Assessment, the planning permission issued by Surrey County Council for the Horse Hill development was held to be unlawful.

This ruling will go on to have major impacts for planning applications concerning other fossil fuel projects, and any other developments which would result in increased greenhouse gas emissions, whether directly or downstream.

– Luke Hollway

All of our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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