Surrey County Council was challenged today at the High Court over its approval of two decades of oil extraction near Gatwick Airport.
The council granted planning permission for long-term production at the Horse Hill site in September 2019, two months after declaring a climate emergency.
Environmental campaigner Sarah Finch, who lives near Horse Hill, argued that the council should have taken into account the full consequences for the climate.
The court heard that an environmental statement that accompanied the application assessed the greenhouse gases that would be released during the operation of the site, the direct emissions.
But it did not consider the climate impact of burning the oil produced at Horse Hill, known as the indirect emissions. These were later estimated at up to 10.6 million tonnes of CO2 equivalent.
Marc Willers QC, barrister for Sarah Finch, said the court should quash the planning permission.
He said Surrey County Council had “wholly failed to assess the greenhouse impacts of the development arising from the combustion of the oil.”
“There was a patent defect in the EIA process and that should vitiate the decision.”
Mr Willers said there were no other regulators that would assess the greenhouse impacts of burning the oil or control them
“We’re in times now where environmental assessment has to grapple with the climate emergency. That is not what happened in this case, and it ought to have done.
“We cannot sit by and let greenhouse gas emissions continue unabated. We are in a new environment and a dangerous one at that.
“Given the need to reduce greenhouse gas emissions, decision-makers should consider whether it was appropriate to grant planning permission.”
Mr Willers described the environmental statement as unlawful because it was incomplete. He also said there was an error in law because the statement failed to follow the scoping opinion, a set of guidance given by the council to the applicant, a subsidiary of UK Oil & Gas plc.
He said the council originally recommended the statement assess the indirect emissions. But after the statement was submitted, the officer responsible for its review had a “volte face”, Mr Willers said, and changed her mind.
Mr Willers also criticised the council’s report to the planning committee. This did not address the estimated level of greenhouse gas emissions, direct or indirect, he said. It also failed to engage with the implications of the government’s legally-binding commitment to reach net zero emissions by 2050.
Surrey County Council defended its decisions to grant planning permission and to remove the need to assess emissions from burning the oil.
The council’s barrister, Harriet Townsend, rejected the argument that these emissions were an indirect effect of the development:
“There is likely, down the line, to be greenhouse gas emissions that the product of the development is associated with. But whether they are effects of the development are a different question. They are effects of the product.”
The court was told that oil from Horse Hill was likely to be used in the transport sector and would probably be exported.
Ms Townsend said neither the developer nor the council had any way of knowing whether the product would be burnt in the UK or abroad, or if any emissions were offset.
[UKOG] “has no control over the question over whether the oil is combusted and if it is when and how.
“The combustion emissions are not caused by the development; they are not effects of the development; and they are not caused by the use and exploitation of the end product of the works.
“in this case, the use and exploitation of the end product of the works is the operation of the well site and the sale of the crude oil.”
The judge, Mr Justice Holgate, said Ms Finch’s case would have “tremendous implications” for the planning system in England and Wales if it succeeded.
He said the issue of assessing indirect greenhouse gas emissions may not be a suitable one for land use planning decisions.
“It may need to be considered by parliament and not judges”.
He indicated that a decision in this case may need to wait until after the ruling by the Supreme Court on whether the government’s approval of a third runway at Heathrow Airport took account of UK climate change commitments.
The judge also criticised the volume of information, including what he described as inadmissible witness statements, submitted to the court.
“This case has got out of hand in terms of the material put before the court. I think the danger is that it will get in the way of delivery of justice.”
He said participants in the case could not rely on material that had not been considered by the council at the time.
- The case was adjourned to 10.15am on Wednesday 18 November 2020, again conducted by video conference. The court is expected to hear more from Surrey County Council and from lawyers representing the Secretary of State for Housing, Communities and Local Government and UK Oil & Gas plc.