A campaigner’s legal challenge against oil production in Surrey has grown into a case to bring UK planning policy into line with climate change strategy.
If successful, it would require future fossil fuel projects to be in accord with the UK’s target to reach net zero by 2050, she said.
The case, brought by writer Sarah Finch, originally sought a judicial review of Surrey County Council’s decision to grant planning permission for 20 years of oil production at Horse Hill near Horley.
But a hearing in November 2020 at the Court of Appeal will now also consider how national planning rules fit with net zero.
The secretary of state for local government is likely to become involved and environmental organisations are being encouraged to back the case.
Ms Finch, who is supported by the Weald Action Group, said:
“This case is really important. There is so much resting on it.
“The planning regime is out of step with climate and that is what our case is all about.
“If we win, any future fossil fuel application or high carbon footprint development would have to be properly in accord with the government’s net zero target and would have to calculate all its greenhouse gas emissions up front.
“If they don’t calculate the greenhouse gas emissions at the planning stage, when will they? It is really important that the planning regime is brought into line with climate policy.”
The case centres on whether Surrey County Council should have considered the carbon emissions that would result from the use of oil and gas produced at Horse Hill, known as indirect or downstream emissions.
Ms Finch argues that the council acted unlawfully because it took into account only the carbon generated by the production site itself, the direct emissions.
“The council did not look at the far greater emissions that would happen when they burnt the oil which is, after all, the main point of getting it out of the ground.”
She will also argue that the council made only a cursory reference to the impact of the proposals on achieving the UK’s net zero target, announced three months earlier.
Also unusually, the judge, Lord Justice Lewison, said a subsidiary argument in Ms Finch’s case should be considered in detail as a new ground at the hearing.
Rowan Smith, an environmental lawyer with Leigh Day, the firm supporting the case, said:
“It very rarely happens that a judge assists a claimant. It is almost always the other way round.”
The judge described the argument as a “point of some importance which should be considered at a full hearing”, Mr Smith said.
“To us that indicated that this a point of real importance.”
The additional ground centres on what councils are required, under planning rules, to consider when deciding a planning application.
Mr Smith said initially the council told the site operator, a subsidiary of UK Oil & Gas plc, that its planning application should calculate the downstream or indirect carbon emissions produced by using the oil from Horse Hill.
But he said the environmental statement produced by the company for the application did not evaluate the downstream emissions. It confined its assessment of carbon impacts to direct emissions from the site.
The downstream emissions were also not taken into account by planning officers or councillors when they made their decision.
The council’s justification for changing its mind was that planning policy says downstream emissions would be regulated by other non-planning regimes, Mr Smith said.
But he said a previous appeal case, dealing with fracking for shale gas, had ruled that this applied to exploration sites. The ruling in that case was that production sites, like Horse Hill, did need to consider the carbon impact, he said.
The failure to assess downstream greenhouse gas emissions also violated environmental impact assessment rules, he said.
“Because we are now targeting the national planning policy the secretary of state has the opportunity to be involved in the case.”
A submission from the minister must be made by 7 October 2020, when Surrey County Council must also make its written case.
There are also talks with environmental groups about whether they want to intervene in the case.
The Weald Action Group has already raised about £25,000 towards the case. It is now trying to raise another £10,000 to cover the costs of the additional legal argument. A 72-year-old grandmother is doing a 100-mile sponsored walk and a sale of artwork is due to launch in October.
The appeal court hearing is expected to be conducted remotely on 17 and 18 November 2020.