English appeal court rules on assessment of indirect emissions in consent applications

Planning law expert Nick McDonald of Pinsent Masons said the Court of Appeal’s ruling in a case concerning an oil drilling development highlighted that it is for decision makers to determine whether there is a sufficient causal connection between the project under consideration and indirect emissions that may be considered to arise from that development.

“As such, it will be incumbent on applicants to provide utmost clarity and convincing evidence as to what should be considered as ‘the project’ for environmental impact assessment (EIA) purposes and what can be considered to be the specific indirect effects of that specific development from an early stage” McDonald said. “The scoping process will become even more important following this case, as applicants and decision makers will have to grapple with determining the scope of indirect emissions from projects that will be at an early stage of development.”

“In undertaking this process, it should be particularly noted that the fact that indirect emissions may not be in the control of the developer is not necessarily relevant – the key consideration is whether the effects flow from the development,” McDonald said.

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and their Infrastructure Planning equivalent require developers to produce an environmental statement alongside their application for planning permission for those schemes which meet the thresholds set out in the Regulations. The statement must describe the likely significant effects of a development, both direct and indirect, on the environment.

The appeal was brought by campaigner Sarah Finch on behalf of the Weald Action Group. Finch, supported by environmental campaign group Friends of the Earth, claimed Surrey County Council had unlawfully granted planning permission to the developer of an oil drilling development given the company had not assessed the impact of indirect emissions – arising from the eventual refining and use of the oil produced by the development – in its environmental statement. 

The High Court ruled that the law only obliges developers to assess the effects which the development itself has on the environment.

The Court of Appeal dismissed Finch’s appeal, and said the development could proceed. However, it made its decision on slightly different grounds from the High Court, putting the burden on authorities to consider the connection between a project and its likely impact on the environment, including indirect effects, as a matter of planning judgement.

McDonald said it was notable the court had ruled there was no ‘gloss’ to be put on a degree of connection between a ‘project’ and ‘effect’ such as whether it is ‘reasonably foreseeable’.

“In the context of the usual EIA approach to assessing ‘likely’ significant effects on the basis of a ‘reasonable worst case’, it can be seen that the case to made with regards to a ‘non’ connection will be case-specific,” McDonald said.

The Court of Appeal also said that a decision maker’s judgement can only be challenged based on public law grounds.

Planning law expert Matthew Fox of Pinsent Masons said: “One can see that objectors would seek to make such arguments on fact-specific grounds. Indeed, this is evidenced by this Court of Appeal decision where the dissenting judgment considered that the County Council’s decision was unlawful on the facts and the County Council should have considered the indirect impacts from the use of the oil before considering whether to grant planning permission”.

Fox said he expected further challenges by objectors to developments on grounds relating to indirect effects, despite the Finch case being decided in favour of the council. 

“As such, this judgment is one of relevance to developments across all sectors in ensuring that the scope of their assessments are sufficiently robust and that the connection – or disconnection – between ‘projects’ and indirect ‘effects’ are sufficiently discussed.” Fox said.