High Court hears challenge to drilling for oil near Gatwick

A Redhill activist who argued planning consent for oil drilling at Horse Hill was unlawful is eagerly awaiting a High Court judgement.
Campaigners opposing drilling at Horse Hill north of GatwickCampaigners opposing drilling at Horse Hill north of Gatwick
Campaigners opposing drilling at Horse Hill north of Gatwick

Sarah Finch raised £35,000 for legal fees through crowdfunding, to contest the process by which Surrey County Council gave planning permission to Horse Hill Developments in September last year.

A two-day High Court hearing that concluded last week (Wednesday November 18), heard that greenhouse gases produced on-site near Horley had been assessed.

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But, it was argued they should also have considered what the claimant called ‘indirect effects’ – the carbon released later when oil taken from the site was burned.

The judge is deciding whether or not this falls within the scope of the Environmental Impact Assessment (EIA) regulations.

According to the defendant, such an assessment is not a legal requirement, and none of the consultation bodies, including the Environment Agency, had said so.

“Nobody piped up and said, you must assess greenhouse gases,” said Harriet Townsend, representing Surrey County Council. “Nobody said, why are you excluding downstream emissions?

“There’s never been a requirement to quantify them.”

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David Elvin QC, representing Horse Hill Developments’ parent company, UK Oil & Gas, said: “They are not direct effects and therefore, they fall outside the scope of the regulations.”

Marc Willers QC, on behalf of claimant Sarah Finch, said greenhouse gases are plainly an indirect effect and ought to have been assessed, but assessment was ruled out because they were not under the control of the developer.

Mrs Townsend said: “Lack of control, we advance, is a feature of this case which, with others, makes it reasonable not to require an assessment.”

Mr Justice David Holgate will decide whether an absence of control rules out a need for assessment.

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Mrs Townsend claimed it would be impossible to calculate emissions, as they would depend on the market.

She said: “The reason the EIA doesn’t have to encompass a quantified assessment of greenhouse gas consumption is that it will form an indistinguishable part of the global supply of oil. Whether or not combustion emissions are additional depends on demand.

“It joins the globally available supply of crude oil in a market that’s entirely outside the scope of this project.”

Mr Willers told the court it was wrong to claim the oil was indistinguishable. “The fact it joins a global market does not prevent it from being quantified, or justify a lack of assessment,” he said.

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The county council declared a climate emergency in July last year in support of the UK’s commitment to achieving net zero carbon emissions by 2050.

Mr Elvin told the court that net zero was a point raised before the planning committee members, and that they had all had access to the Weald Action Group’s submission, which was critical of the developer’s environmental statement.

But, he said, hydrocarbons were needed for the national economy and “the need argument of national policy outweighed those concerns”.

Mr Willers argued the committee had been presented with the idea that the project was needed so the UK could avoid having to rely on imports, and yet the oil was unlikely to be combusted in this country.

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He said: “We’re talking about temporary planning permission over 25 years, with 20 years production – that could take us up to the year 2045.

“The length might have been shorter had the committee had the full knowledge it needed to assess the greenhouse gas emissions.”

Mr Justice Holgate said if he did accept a legal error, he struggled to say it would not make any difference to the planning decision.

Last year planning permission for an intensive poultry-rearing facility was quashed by the Court of Appeal in the Squire v Shropshire Council case.

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Judges ruled the permission was unlawful because the EIA process had not taken into account management of the chicken manure.

The council had failed to consider the development’s likely environmental effects, the dust and the stench, when this by-product of the development was disposed of, partly off-site.

Surrey County Council’s barrister disputed the case was comparable.

A judgement on Surrey County Council and Horse Hill Developments is expected within weeks.

If the judge rules indirect effects ought to be assessed for their environmental impact, it will set an important precedent in planning law.

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