Marc Willers KC of the Garden Court Chambers Environmental Law & Climate Justice Team represented Sarah Finch, together with Estelle Dehon KC and Ruchi Parekh of Cornerstone Barristers.
Counsel were instructed by Rowan Smith, Carol Day and Julia Eriksen of Leigh Day solicitors.
Link to full judgment: R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents)
This morning, the Supreme Court handed down a ground-breaking judgment in the case of Finch v Surrey County Council that will have significant ramifications for the future of fossil fuel production in the UK and beyond.
The Supreme Court ruled that the Environmental Impact Assessment (EIA) Directive (and the EIA Regulations 2017 that transposed the Directive into UK law) should be interpreted so as to require a planning authority to assess the downstream greenhouse gas (GHG) emissions of a fossil fuel extraction project, before deciding whether to grant planning permission for the development.
Having done so the Supreme Court allowed an appeal brought by Sarah Finch and quashed a decision by Surrey County Council to grant planning permission for oil extraction for a period of 20 years at a site known as Horse Hill in Surrey.
The Supreme Court’s decision marks the successful end of a five-year legal battle by campaigner Sarah Finch and the Weald Action Group. They have consistently argued throughout the lengthy proceedings that the Council’s failure to assess the downstream GHG emissions that would inevitably arise from the combustion of the oil extracted from Horse Hill was an error of law and rendered its decision to grant planning permission unlawful.
Today the Supreme Court agreed with Ms Finch (by a majority of three to two) and concluded that it was inevitable that GHG emissions would result from the burning of the oil produced, that those emissions were clearly indirect effects of the development, and that the Council’s failure to assess and consider the impact of those emissions on the climate and global warming was unlawful.
In their clear and well-reasoned judgment, the majority (Supreme Court Justices Leggatt, Kitchen and Rose) placed significant emphasis on the need for decision makers to be provided with full information on the environmental impact of a proposed development and for there to be public debate before a decision is taken.
In order for the process to have the necessary democratic legitimacy, the public must be able to participate in environmental decision making and be informed of the environment impacts of a proposed development, so that they can comment upon them before a decision is made to grant planning permission; after all, as the Justices noted, ‘You can only care about what you know about.’
The majority rejected a number of the arguments raised by the Council, Horse Hill Development Ltd and the Secretary of State, including the unevidenced suggestion that if oil was not extracted from Horse Hill it would simply be substituted by oil produced in another location.
The majority also noted that there was no principle that ‘if environmental harm is exported it may be ignored’. In doing so, the Justices noted that ‘Climate change is a global problem precisely because there is no correlation between where GHGs are released and where climate change is felt ’and that ‘the effect of the combustion emissions does not depend on where they occur’.
This ground-breaking judgment will have wide ramifications in the UK and beyond its borders.
There are a number of cases that have been adjourned pending the Supreme Court’s decision which can now be heard. In the future, planning authorities will have to assess and take into account the downstream GHG emissions arising from fossil fuel extraction when determining whether to grant permission for such development.
The judgment is likely to influence decisions taken in EU countries where the EIA Directive is applicable. The Supreme Court’s decision is the first of an apex court which addresses the interpretation of the EIA Directive in the context of fossil fuel extraction, and is likely to be followed by courts in other jurisdictions.
The judgment is also likely to be given significant weight by judges determining the same issue in countries beyond the EU and so could have an effect on the future of fossil fuel extraction across the globe.
Our Marc Willers KC represented Sarah Finch, together with Estelle Dehon KC and Ruchi Parekh of Cornerstone Barristers. They were instructed by Rowan Smith, Carol Day and Julia Eriksen of Leigh Day solicitors.
Marc Willers KC said:
‘This is a wonderful victory for our courageous client, Sarah Finch, and her supporters in the Weald Action Group.
It is also a fantastic victory for the planet because it is bound to have an impact on fossil fuel extraction. Planning authorities will now be required to face up to the fact that fossil fuel extraction will inevitably lead to an increase in global warming which will only serve to exacerbate the climate emergency and put us all in even greater danger before deciding whether to grant planning permission for such a project. Faced with that knowledge I think that many decision makers will do the right thing for the sake of the planet, our children and future generations and refuse permission.’
See press coverage: BBC News
