Appeal court judges split over Horse Hill oil wells decision

An appeal to the Supreme Court is being considered after judges narrowly ruled today that Surrey County Council’s controversial decision to allow oil production in greenbelt countryside, was lawful.

The case was brought to the Court of Appeal by campaigner Sarah Finch, on behalf of the Weald Action Group, and was supported by Friends of the Earth as the legal intervener. The decision was defended by the Council, the developer (Horse Hill Developments Limited) and the Secretary of State for Levelling Up, Housing and Communities.

In a majority 2:1 ruling, Court of Appeal judges said the council’s decision to grant planning permission for the oil development, without considering the "end use" emissions when over three million tonnes of oil extracted from the site is eventually burnt, was lawful. Surrey County Council made this decision just months after declaring a climate emergency.

Whilst this was not the ruling Friends of the Earth was hoping for, today’s judgment does improve the law from the previous ruling by the High Court.

Crucially, it makes clear that planning authorities have a discretion over whether to consider the "end use" emissions from the combustion of fossil fuels in the environmental impact assessment. By contrast, the High Court had ruled that Surrey County Council could not have considered these emissions, as a matter of law.

Last year’s UN Production Gap Report identified, once again, that global planned fossil fuel production puts the world dangerously out of sync with the temperature limits under the Paris Climate Agreement. It is imperative therefore, that decision-makers are at least aware of the full climate impacts of fossil fuel developments, when they are considering whether or not to grant them planning permission.

Sarah Finch said:

"I’m dismayed by this judgment – but reassured it was not unanimous. The judges agreed it’s inevitable that oil produced at Horse Hill will eventually be burned, and that will produce greenhouse gas emissions. The fact that even senior judges can't agree on whether these "downstream" emissions should be assessed in the planning process shows that we need legal certainty on the issue. How can planning authorities be expected to know what to do when even judges don’t agree? Every tonne of carbon dioxide emitted will make the future situation worse – and more than 10 million tonnes could be produced as a result of this development."

Friends of the Earth’s lawyer, Katie de Kauwe, said:

"This split judgment highlights that there is not agreement, even amongst senior judges, over questions of law relating to climate change.

"We are pleased to see that the Court of Appeal has expressly recognised that end-use emissions from fossil fuel developments are capable of scientific assessment in Environmental Impact Assessment, and that the legislation allows planning authorities to consider them.

"However, we do not believe that the majority decision by the Court of Appeal goes far enough. We wholeheartedly agree with the conclusion of Lord Justice Moylan, who gave the dissenting judgment in this appeal, that Surrey County Council could and should have considered the inevitable end-use emissions arising from this fossil fuel development.

"Planning authorities must play their part in confronting the climate crisis, or the planet will continue to hurtle towards catastrophe.

"Friends of the Earth is proud to have supported Sarah Finch in this crucial legal battle and will continue to do so if she appeals and this case goes to the Supreme Court."

Rowan Smith, Leigh Day environmental law solicitor, said: 

"Our client’s courageous campaign to protect the environment from the climate crisis has been rewarded: there is now Court of Appeal authority that, when decision-makers come to consider granting planning permission for fossil fuel projects, they may be required by the law to be assess the greenhouse gas emissions from the use of the extracted oil, coal or gas.

"This is a hugely important legal victory in the context of wider climate change litigation in the UK. Nevertheless, we consider that the overall judgment, given in the context of UK’s obligations to make urgent and deep cuts to carbon emissions in order to reach net zero by 2050, is flawed and we are advising our client on an application to the Supreme Court for permission to appeal."

ENDS

Notes

1. Sarah Finch brought this case on behalf of the Weald Action Group, an umbrella for local groups that have been campaigning against the extraction of oil and gas in the southeast of England. She is being represented in court by Marc Willers QC, Garden Court Chambers and Estelle Dehon, Cornerstone Chambers, and her solicitor is Rowan Smith at Leigh Day LLP.
2. Friends of the Earth Limited is represented by Paul Brown QC of Landmark Chambers, and Nina Pindham of No. 5 Chambers.
3. Friends of the Earth’s briefing ahead of the Court of Appeal hearing on the case in November 2021 is available here.
4. Friends of the Earth opposes the granting of planning permission for the Whitehaven coal mine and was a Rule 6 Party in the planning inquiry held in September 2021. Following the High Court decision on Horse Hill, the Whitehaven developer has been arguing that they do not need to consider the end-use emissions from their proposed coal development either.