Legal

Breaking: Surrey campaigner loses legal fight over climate effects of 20-years of oil production at Horse Hill

An environmental campaigner has failed in her legal challenge about the climate effects of long-term oil extraction near Gatwick Airport.

Sarah Finch at Horse Hill oil site. Photo: Weald Action Group

Sarah Finch, from Redhill, had argued that Surrey County Council acted unlawfully in granting planning permission for 20 years of oil production at the Horse Hill site.

She said the council should have taken into account the full consequences of the decision on the climate.

But a High Court judge, Mr Justice Holgate, today dismissed her case for a judicial review of the decision.

In a written ruling released this evening, he said the council was not required to consider the climate effects of burning oil produced at Horse Hill.

He said the decision was in line with government policy and the council could not be criticised for the way it granted planning permission in September 2019. He also said “it would be impossible” for the court to say that the council’s planning committee did not have an “adequate picture of relevant policies” or that policy had been misinterpreted”.

Ms Finch responded this evening: 

“This ruling shows just how out-of-touch our planning system is with the climate emergency. 

“Given the Judge’s ruling that planning permission was lawfully granted because it was in line with national government policy, then clearly, that policy needs to be updated.

“It hasn’t been updated since before the Net zero Target was enacted and doesn’t reflect the fact that Parliament has declared a national climate emergency. How can we have a zero emissions target if we don’t count the carbon emissions?” 

UKOG described the decision as “victory for law and common sense”.

Direct and indirect impacts

The case, heard last month in a virtual two-day session, centred on what the council took into account in reaching its decision. (DrillOrDrop reports here and here),

The application for oil production, by a subsidiary of UK Oil & Gas, included an environmental impact assessment [EIA] which considered the greenhouse gas emissions resulting from the operation of the site, known as direct emissions. But Surrey County Council did not require the EIA to assess the indirect emissions, resulting from the burning of oil produced at Horse Hill. They were later estimated at up to 10.6 million tonnes of CO2 equivalent.

Marc Willers QC, for Ms Finch, said at the hearing that the council might have refused planning permission if it had considered these indirect emissions.

But Mr Justice Holgate said in his ruling that the planning system was concerned with the use of land for development and not the impacts of that use.

He said the council had accepted that the essential character of the proposed development at Horse Hill was for the extraction and production of hydrocarbons and not the later processing, distribution, sale and consumption of end products.

He said the planning system was:

“not directed at the environmental effects which result from the consumption, or use, of an end product, be it a manufactured article or a commodity such as oil, gas or electricity used as an energy source for conducting other human activities.”

He said environmental impact assessments must address both direct and indirect effects of the development for which planning permission was sought, even if they were outside the control of a developer.

But he said:

“there is no requirement to assess matters which are not environmental effects of the development or project. In my judgment the scope of that obligation does not include the environmental effects of consumers using (in locations which are unknown and unrelated to the development site) an end product which will be made in a separate facility from materials to be supplied from the development being assessed.”

Judge Holgate concluded:

“no legal criticism can be made of SCC’s [Surrey County Council’s] focus on the land use and development proposed because that was the “project” which was the subject of the planning application and the related EIA.

“Viewed in that way it is impossible to say that SCC’s judgment that GHG [greenhouse gas] emissions from the combustion of refined fuels were not an environmental effect of the proposed development was, as a matter of law, irrational. SCC’s judgment was not beyond the range of conclusions which rational decision-makers could lawfully reach.”

Judge Holgate also said he did not accept the argument by Ms Finch’s team that there were no other measures in place in the UK for assessing and reducing greenhouse gas emissions from the combustion of oil products in motor vehicles. He said these included the target to reach net zero emissions by 2050.

But he did state that the existence of another regulatory regime was not a reason not to assess the environmental impact of a development.

After the ruling, Ms Finch said:

“There seems to be a fundamental inconsistency in the judgment.

“The judge accepts the Council’s assessment of the positive (as the Council saw it) indirect benefits of the oil – such as contributing to UK energy security – but says that the negative impacts did not need to be assessed. How is that logical?”

Rowan Smith, solicitor at Leigh Day, which represented Ms Finch, said: 

“At the time of a climate emergency, our client is very surprised that the Court has concluded that, under the Environmental Impact Assessment Regulations, the greenhouse gas emissions from the use of oil extracted are not effects of oil development, and so assessment of their climate impact is not required.

“This exposes a major flaw in the planning system in this country, and proves that it is not fit for purpose in a Net Zero world. Our client is of course bitterly disappointed with this judgment, especially after such a long-standing campaign against oil development in Surrey, and is accordingly taking legal advice on grounds of appeal.”

Friends of the Earth supported Ms Finch’s case. The organisation’s in-house lawyer, Katie de Kauwe, said:

“It beggars belief that with both Parliament and Surrey County Council having declared a climate emergency, and as we approach the year the UK will host vital UN climate negotiations, we see an oil company allowed to drill for millions of tonnes of climate-wrecking oil in the English countryside. This must stop.

“The court’s decision is disappointing, but we are proud to have been able to support Sarah Finch and many others in opposing oil drilling in Surrey in this case.”

The costs of Ms Finch’s legal challenge were raised by a crowdfunder appeal.

This report will be updated with any response from Surrey County Council.

Update

At 7am on 22 December, UK Oil & Gas issued a statement to investors. The company’s chief executive, Stephen Sanderson, said:

Stephen Sanderson, Chief Executive of UKOG, said:

“This is a victory for law and common sense. One can, however, only wonder why a comprehensively unsound claim with a clear political agenda was permitted so many bites at this legal cherry. Justice Holgate made it abundantly clear in his judgement that the courts are not responsible for making political, social, or economic choices.

“To our opponents, many of whom fail to see the irony of burning oil to drive to our site to protest, I bring to their attention last week’s Energy White Paper, in which indigenous oil and gas is a part of the UK’s energy transition to net zero.

“Furthermore, oil use as a non-combusted industrial feedstock will remain necessary to manufacture key 21st century materials during and post transition, as without such materials there will be no electric vehicles, green aviation or wind turbine blades. It must surely be preferable that such transitional fuel and vital feedstocks should come from domestic sources rather than those beyond our control and regulation.

“Production will thus continue at Horse Hill to ensure that each highly regulated barrel we produce is one less higher carbon footprint and less regulated barrel imported. Our indigenous barrel’s economic benefit will also remain in the UK rather than add to the UK’s balance of payments deficit.”

Links

DrillOrDrop reports on the judicial review hearing: Day 1 and Day 2

Ruling by Mr Justice Holgate

25 replies »

  1. OMG!

    Katie is a one!

    “Millions of tonnes of oil.”

    Where do FOE get these individuals from? If these organisations can not employ people who have any idea what they are objecting about, why should they be allowed to raise money from the public to pay their salaries?

    Mind you, it does clarify one common aspect. Legal challenge, FOE get involved, legal challenge lost.

  2. I am sad to hear of this ruling. The inconsistencies in planning law, in relation to destructive climate emissions, really have to be addressed, as do the other climate safeguarding procedures mentioned by the judge. If we are to have a zero carbon future the government must take these issues more seriously.

      • I suggest you familiarize yourself with the meaning of ‘zero carbon’, Paul. Thanks however for the pretty, if completely irrelevant, picture. It’s sad that the Court decided as it did. Even if the legal arguments seem – (to a non-lawyer) – sound, one wonders if the decision and arguments justifying the decision would have been the same had the application been for, say, an anthrax production facility!

        • Iaith1720

          One of the key issues in planning is the legality of the product (be it housing / chickens or in this case gas / oil).

          Anthrax is interesting -Is it legal to produce it?

          If so, then the planning process would face the same issue as the UKOG request – those against it would have to compile a raft of reasons against, valid or not and a few as spurious are possible, and the developer would have to try and address them (with similarly spurious reasoning as is the case with our adversarial planning process).

        • Wifey still keen on some carbon for Xmas. (No chance!)

          Suggest some others need to familiarize themselves with carbon and it’s uses and benefits. Now, surplus carbon in the wrong place is another issue. So, get the surplus carbon mopped up and utilised.

          Talking of irrelevance, anthrax production facilities are already controlled by multiple agencies across the world, simply because they ONLY do harm and NO good. Oil and gas are utilised for many purposes that benefit mankind and will continue to do so for decades to come. If you want an example that pertains to this particular situation, look no further than Fawley, where the chemicals plant has increased production of synthetic rubber to meet increased demand from the medical sector reference Covid. However, they are also used by antis to make their points on the Internet and trundle around the country to find somewhere to disturb the local owl population! Ironic really.

      • “millions of tonnes of oil” comes from the Council’s evidence. Dr Salder’s witness statement said it’s estimated that over 3 million tonnes of oil would be produced.

        • Well, you are easily fooled then Sarah, as well as Katie!

          How much has been produced, how much is being produced, why is it UKOG and not Shell or BP? DOH.

          Yes, there have been estimates of how much oil may be in the Weald, and estimates of how much may be able to be extracted, but neither have any confirmation in reality. But, with reality being ignored repeatedly, why not just repeat?

            • Nope. I was clearly stating you were fooled, Sarah.

              No wonder you lost, if you have such difficulty understanding. Fortunately, Judge Holgate seemed to have a grasp.

  3. Congratulations to Surrey county council & UKOG let if flow, let it flow with new developments for the next 25 + years.

  4. The air-breathers of the planet appreciate you trying.
    Anyway, I think they are bringing up more water than oil, and at least you can’t set fire to that and pollute the air with it. Maybe they could sell it to Nestle.

  5. Absolutely immoral.This is a complete disgrace.Points to corrupt Local Government.What about all their talk about low emissions etc etc .
    So very disappointing and disgraceful

    • It points to nothing of the sort, Jane. This was a legal examination and SCC WON! The only immorality is why such a nonsense wasted the time of the legal system.

      Someone mines iron, it is then manufactured into chainsaws. Are the courts supposed to spend their time deciding whether those chainsaws are used to cut down the Amazon rain forest, or whether they are used to clear away all the fallen trees following a typhoon and allow medical aid (delivered with the help of fossil fuel!) to reach those in desperate need?

      Getting the answer you don’t like, should not be confused with getting no answer or getting an incorrect answer.

      • Interesting point, Martin, but you don’t follow through logically. Your argument suggests that you accept that cutting down the rain forest would be a misuse of the iron. May we assume that you also accept that using the gas or oil in an environmentally unfriendly manner is similarly a misuse of the product? The question then arises, are there environmentally friendly uses for the product when the very act of producing is environmentally unfriendly?
        Your understanding of what is or is not immoral is one which is not shared by all of us: nor would we all accept that the arguments adduced amounted to nonsense. As to whether such arguments waste the time of the legal system, I would suggest that this is why we have a legal system, that valid and conscientious arguments might be tested at law. Or are you suggesting bad faith in bringing the case to court?

        • Oh, I suggest my follow through was logical. The cutting down of the rain forest is a case of degree and control. You may feel it is immoral but the indigenous population within the rain forests have been cutting it down, to a degree, well before chain saws were invented! If the indigenous population was not reduced by disease, or migration to more urban areas, that would be even more noticeable. But, there lies the real issue. Population growth in/around such areas has placed far more pressure on such situations. Would you rather the forests in India continue to be removed, for firewood, or would it be better for the tigers for gas/oil reserves to be utilised?

          Using anything in an environmentally unfriendly manner is again, something that is down to interpretation. Does the helicopter flying medical supplies to a disaster zone do “good” but unloading munitions onto troops do “bad”? Not the helicopter, I would suggest. Indeed, even my second example could be “good” depending upon the intentions of those troops.
          Police cars travelling to remove/control protestors from a UKOG site, or demonstrators cars to take them there to require the police cars to attend? Which is environmentally unfriendly? I would suggest the protestors, as the police are legally required to do their job, and it is the act of the protestors that requires that.

          So, no, I do not think it was a good use of the legal system, as I do not believe the arguments valid, and stated that some while ago. In this case, the legal system agrees with me, but you can join those, who in such circumstances blame the legal system rather than admit the reality.

          AND once again, you trap yourself! Is oil produced in Nigeria and then has to be rescued by the SBS from causing a possible maritime disaster in the Solent, environmentally friendly, or is production at HH far more environmentally friendly? Take a look at the Nigerian oilfields.

          Case dismissed-again.

          • No, Martin. It was you who suggested it was immoral; you have not followed the argument. However, to latch on to your elusive argument, – the local Amazon population had of course exploited their resource – the rain forest, although the order of magnitude of non-indigenous exploitation is immensely different. (Indian forests, I feel, should continue to provide firewood in a sustainable manner, until such time as renewables become more satisfactory at scale.)
            Environmental unfriendliness, as I use the term, is not down to interpretation: it refers to actions or processes which damage the planetary atmosphere to an unacceptable level. The ‘acceptability’ is, of course, open to judgement. Perhaps that’s what you’re getting at.
            The courts decide whether the argument is ‘valid’ or not, Martin, which I think you’ve demonstrated is just as well under the circumstances. Thank you for the invitation to “blame the legal system”: I’d rather not though.
            As for accepting the ‘reality’. I might, Martin, if I knew what your reality was, and don’t tell me you’ve already told me, I’m still trying to work out how your recent definition of ‘antis’ fits most of your uses of this term.
            Any more non-sequiturs?
            I’m pleased to see that you think you’ve won the argument: this must be reassuring for you.

            • Nope, wrong again. It was JANE who raised the immoral issue. So, it was YOU who could not follow the argument.

              (You really do have an issue just keeping up with the thread! Seems you are not alone, except you delight in showing it.)

              Nope. Indian forests are NOT providing firewood in a sustainable manner. Hence the issues for the tiger. DOH.

              And, maybe think whether clearing the Amazon rain forest to grow sugar cane that produces fuel is environmentally friendly, or whether keep some rain forest and drill for oil? Or, you could extrapolate that to growing more maize in USA to produce fuel so that less soya is planted, and with soya being the major protein ingredient to add to animal feed then the price of animal protein across the world-including that consumed by the less well off-is significantly increased. Maybe fracking in the USA not quite so environmentally damaging if examined within that context?

              Complicated issues rarely have the simplistic solutions some would suggest-otherwise they would not still be issues.

              And, no, I have won no argument, but the legal system continues to show the anti arguments being put forward are invalid. That is reassuring to me, but I still believe it was time and resource wasted, and was an exercise in vanity.

              • If you read your third sentence to me, Martin – “Oh, I suggest my follow through was logical. The cutting down of the rain forest is a case of degree and control. You may feel it is immoral but the indigenous population within the rain forests have been cutting it down, to a degree, well before chain saws were invented! ”
                Who raised the issue?

                And this: “Case dismissed-again.” You’re not claiming to have won the argument?

                Let’s leave it there: you’re reverting to type.

                • Well yes, you were unable to deal with the valid point I made, 1720. But, that is not new, and your failure to actually address the thrust of the points I made, is evidence of that. Whilst your attempts to deflect from that just adds (fossil) fuel to the fire.

                  So, let me make it simple. Nigerian oil, from very poorly controlled oil fields, then transported across many ocean miles, risking severe maritime pollution (remember the Torrey Canyon?) compared to oil from HH, with tight UK environmental controls. Some may say neither is environmentally friendly, however, if the world is requiring an increase in artificial rubber to help deal with Covid, then I know which source of raw material I would see as environmentally superior. And, yes, therefore, I would like to see HH developed and I do see that being environmentally friendly rather than being committed to a dogma that does not add up environmentally. (No disrespect to the Nigerians but not much respect for their environmental management.)

                  So, in the absence of any defense offered:

                  Case dismissed-again.

  6. This country needs energy ,fuel ,jobs,growth .The ruling is for the best interest of all citizens .Sarah Finch and her donors and friends are out of reach with the rest of society .The case they brought was stupid and selfish .

    [Edited by moderator]

  7. Finally Common Sense has Prevailed!
    Well Done UKOG! and the loyal representatives of those…
    We currently cannot move in this country without consuming some sort of carbon derived energy, FACT! FOE, XR and finch supporters are deluded! It’s Pure lunacy!

  8. Ah seems common sence has prevaled once again. prehaps we should now have a public enquiry into how much Co2 was produced during this totaly unnessary enquiry. as the protesters all jump back into their oil guzzling cars & go back to their oil & gas heated homes. what hypocrissy.

  9. I’m hopeless to think about this choice. The peculiarities in getting sorted outlaw, about harming climate releases, unquestionably ought to be tended to, as do the other climate guaranteeing methodologies implied by the adjudicator. If we are to have a zero-carbon future the public authority should see these issues altogether more sensibly. Regardless, it relatively would be grateful that UKOG! in like manner, the suffering representatives of those. We directly as of now can’t move in this country without consuming some sort of carbon-gathered energy, FACT! Adversary, XR, and finch assistants are cheated! It’s uncorrupted madness!

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