Horse Hill: Appeal Court judges divided over unlawfulness of decision to allow new Surrey oil wells

Horse Hill challenge dismissed – but judgment not unanimous

Court of Appeal judges were divided over a claim that Surrey County Council acted unlawfully when it decided to grant planning permission for new oil wells and 20 years of oil production at Horse Hill in Surrey.

One of three judges agreed with campaigner Sarah Finch and intervenor Friends of the Earth that the council should have considered the full climate impacts of the development, including the ‘downstream’ greenhouse gas emissions that will be produced when the oil extracted at Horse Hill is eventually burned.

However, the other two judges disagreed with the claim that the Environmental Impact Assessment (EIA) used as part of the Council’s decision-making process should have considered the downstream emissions. The Council had initially recommended the developer include these emissions in the Environmental Statement, but subsequently allowed them to confine the assessment to emissions from the site itself.

In the judgment handed down today, Thursday 17 February, Sir Keith Lindblom, Senior President of Tribunals held that High Court Judge Justice Holgate had been right to dismiss the claim for judicial review.

However, Lord Justice Moylan took the view that, by failing to consider the downstream greenhouse gas emissions, the EIA omitted assessment of the relevant and required effects of the proposed development. As a result, he said, planning permission was not lawfully given. He would have allowed the appeal on that basis.

The third judge, Lord Justice Lewison, who had the ‘casting vote’, agreed with Lord Justice Lindblom, but not without reservations.

Sarah Finch, who brought the case on behalf of the Weald Action Group, has campaigned with others against the proposed expansion of the Horse Hill Developments Ltd site, which would result in oil production well into the 2040s. It is estimated that the development could lead to more than 10 million tonnes of CO₂ equivalent being released into the atmosphere when the oil is ultimately burned.

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.”

Rowan Smith, Leigh Day environmental law solicitor who represented Sarah Finch, 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.”

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

“This split judgement 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.” 

Read more:

1. Read a report by Leigh Day solicitors
2. Read a report by Cornerstone barristers
3. Read the judgment in full

Notes 

1. Sarah’s judicial review was dismissed by the High Court in 2020. The appeal was permitted by Lord Justice Lewison, who said there were compelling reasons for it to be heard.
2. Sarah Finch was represented by Leigh Day solicitors, Marc Willers QC (Garden Court Chambers) and Estelle Dehon (Cornerstone Chambers). Friends of the Earth Limited was represented by Paul Brown QC (Landmark Chambers) and Nina Pindham (No. 5 Chambers).
3. The planning consent, granted to Horse Hill Developments Ltd in September 2019, was for four more oil production wells, a water reinjection well, four gas-to-power generators, seven new oil tanks, each with a capacity of 1,300 barrels, and a tanker loading area – and commercial oil production for 20 years. It is estimated that the development could lead to more than 10 million tonnes of CO₂ equivalent being released into the atmosphere when the oil is ultimately burned.
4. The costs of the legal challenge were raised by a crowdfunder appeal and fundraising drives by supporters.