“1. The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 12, the direct and indirect significant effects of a project on the following factors: …”
“1. Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least: … (b) a description of the likely significant effects of the project on the environment; (c) a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; …”
“121. The assessment considers direct releases of greenhouse gases consistent with all phases of the proposed development as described in detail within ES Chapter 4. The essential character of the proposed development is the extraction and production of hydrocarbons and does not extend to their subsequent use by the facilities and process beyond the planning application boundary and outwith the control of the Site operators. 122. The assessment methodology pays regard to national planning policy and guidance that establishes that decision-makers should ‘focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes’. These non-planning regimes regulate hydrocarbon development and other downstream industrial processes and decision-makers can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm.”
“5.15 The assessment presented in the submitted ES focusses on the direct greenhouse gas emissions of the development and operation of the proposed wellsite. The potential contribution of the hydrocarbons that would be produced over the lifetime of the wellsite is not covered in the submitted ES, the reasons for excluding those emissions are set out in paragraphs 121 and 122 … of the submitted ES. The [county council] accepts the argument set out in paragraphs 121 and 122 … of the submitted ES and the justification provided for excluding consideration of the global warming potential of the produced hydrocarbons from the scope of the EIA process.”
“97. Greenhouse gas emissions and the climate – the question of the direct impacts of the proposed development on emissions of greenhouse gases and associated climate change is addressed in chapter 6 of the submitted ES. The question of the development’s impact on climate change and global atmospheric composition is discussed in greater detail in paragraphs 102 to 162 of this report. On balance, and having taken account of the information and evidence submitted by all parties with an interest in the determination of the current planning application, the CPA has concluded that the proposed development would not give rise to significant impacts on the climate as a consequence of the emissions of greenhouse gases directly attributable to the implementation and operation of the scheme.”
“101. … [The] fact that the environmental effects of consuming an end product will flow “inevitably” from the use of a raw material in making that product does not provide a legal test for deciding whether they can properly be treated as effects “of the development” on the site where the raw material will be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. Instead, the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application for planning permission and which do not form part of the same “project”.”
“126. The upshot is that the case law confirms that EIA must address the environmental effects, both direct and indirect, of the development for which planning permission is sought (and also any larger project of which that development forms a part), but 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. I therefore conclude that, in the circumstances of this case, the assessment of [greenhouse gas] emissions from the future combustion of refined oil products said to emanate from the development site was, as a matter of law, incapable of falling within the scope of the EIA required by the 2017 Regulations for the planning application.”
“132. … [No] legal criticism can be made of [the 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 [the county council’s] judgement that [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. [The county council’s] judgment was not beyond the range of conclusions which rational decision-makers could lawfully reach.”
“likely environmental effects more remote than direct effects (whether in time or location), but not so remote that they cannot be attributed to the development at all, having regard to the purpose, nature and any end product of the development, including the environmental impacts liable to result from the use and exploitation of the end product”
“The basic question in this case is whether, under Directive 2011/92 EU of the EuropeanParliament and of the Council (“the EIA Directive”) and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA regulations”), it was unlawful for a county council, as mineral planning authority, not to require the environmental impact assessment for a project of crude oil extraction to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.”
“likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects”
“(14) Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500,000 cubic metres/day in the case of gas.”
“(d) Deep drillings … [when] the area of the works exceeds 1 hectare”; and “(e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale (when the) area of the development exceeds 0.5 hectare.”
“(7) Over the last decade, environmental issues, such as resource efficiency and sustainability, biodiversity protection, climate change, and risks of accidents and disasters, have become more important in policy making. They should therefore also constitute important elements in assessment and decision-making processes”; and: “(13) Climate change will continue to cause damage to the environment and compromise economic development. In this regard, it is appropriate to assess the impact of projects on climate (for example greenhouse gas emissions) and their vulnerability to climate change”; and: “(31) The environmental impact assessment report to be provided by the developer for a project should include a description of reasonable alternatives studied by the developer which are relevant to that project, including, as appropriate, an outline of the likely evolution of the current state of the environment without implementation of the project (baseline scenario), as a means of improving the quality of the environmental impact assessment process and of allowing environmental considerations to be integrated at an early stage in the project’s design.”
“(f) any additional information specified in Schedule 4 relevant to the specific characteristics of the particular development or type of development and to the environmental features likely to be significantly affected.”
“A description of the likely significant effects of the development on the environment resulting from, inter alia: (a) the construction and existence of the development, including, where relevant, demolition works; … (f) the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change; The description of the likely significant effects on the factors specified in regulation 4(2) should cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the development. This description should take into account the environmental protection objectives established at Union or Member State level which are relevant to the project, including in particular those established under Council Directive 92/43/EEC and Directive 2009/147/EC.”
“[43] It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works. [44] Moreover, the list laid down … of the factors to be taken into account, such as the effect of the project on human beings, fauna and flora, soil, water, air or the cultural heritage, shows, in itself, that the environmental impact whose assessment Directive 85/337 is designed to enable is not only the impact of the works envisaged but also, and above all, the impact of the project to be carried out.”
“The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of "irrationality" or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is "so unreasonable that no reasonable authority could ever have come to it": see Associated Picture Houses Ltd v Wednesbury Corp[1948] 1 KB 223 , 233-4. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police[1998] UKHL 13 ;[1999] 2 AC 143 , 175 (Lord Steyn). The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Factual error, although it has been recognised as a separate principle, can also be regarded as an example of flawed reasoning – the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker's reasoning: see E v Secretary of State for the Home Department[2004] EWCA Civ 49 ;[2004] QB 1044 .”
“Given the nature of the proposed development, which is concerned with the production of fossil fuels, the use of which will result in the introduction of additional greenhouse gases into the atmosphere, it is recommended that the submitted EIA include an assessment of the effect of the scheme on the climate. That assessment should consider, in particular, the global warming potential of the oil and gas that would be produced by the proposed well site”.”
“The scope of the assessment is confined to the direct releases of greenhouse gases from within the well site boundary resulting from the site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.”
“121. The assessment considers direct releases of greenhouse gases consistent with all phases of the proposed development as described in detail within ES Chapter 4. The essential character of the proposed development is the extraction and production of hydrocarbons and does not extend to their subsequent use by the facilities and process beyond the planning application boundary and outwith the control of the site operators. 122. The assessment methodology pays regard to national planning policy and guidance that establishes that decision-makers should ‘focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes’. These non-planning regimes regulate hydrocarbon development and other downstream industrial processes and decision-makers can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm.”
“5.15 The assessment presented in the submitted ES focusses on the direct greenhouse gas emissions of the development and operation of the proposed wellsite. The potential contribution of the hydrocarbons that would be produced over the lifetime of the wellsite is not covered in the submitted ES, the reasons for excluding those emissions are set out in paragraphs 121 and 122 … of the submitted ES. The [county council] accepts the argument set out in paragraphs 121 and 122 … of the submitted ES and the justification provided for excluding consideration of the global warming potential of the produced hydrocarbons from the scope of the EIA process.”
“97. Greenhouse gas emissions and the climate – the question of the direct impacts of the proposed development on emissions of greenhouse gases and associated climate change is addressed in chapter 6 of the submitted ES. The question of the development’s impact on climate change and global atmospheric composition is discussed in greater detail in paragraphs 102 to 162 of this report. On balance, and having taken account of the information and evidence submitted by all parties with an interest in the determination of the current planning application, the CPA has concluded that the proposed development would not give rise to significant impacts on the climate as a consequence of the emissions of greenhouse gases directly attributable to the implementation and operation of the scheme.”
“The ES assessed the GHG that would be produced from the operation of the development itself. However, this challenge concerns the non-assessment by the ES of the GHG that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere. The issue … arises in a very striking manner in the present case. It is agreed that once the crude oil produced from the development is transported off site it enters, in effect, an international market and the refined end product could be used anywhere in the world, far removed from the Surrey Weald.”
“[69] It is not possible to say at this stage where the oil produced would be refined or subsequently used. It could be refined and used in the United Kingdom or exported and then refined and used abroad. It might be refined overseas and then imported back into the UK.”
“[128] … In summary, HHDL stated and SCC accepted that the essential character of the proposed development of the site is for the extraction and production of hydrocarbons. The character of that land use did not include subsequent processing, distribution, sale and consumption of end products. [129] The ES went on to refer to national policy stating that the planning system should focus on land use issues rather than the control of process or emissions for which there are other specific regulatory regimes. This part of the reasoning was based upon inter alia paragraph 183 of the NPPF and case law such as Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] Env. L.R. 37 and R (An Taisce, the National Trust for Ireland) v Secretary of State for Energy and Climate Change[2013] EWHC 4161 (Admin) ;[2015] PTSR 189 , summarised by Gilbart J in R (Frack Free Balcombe Residents Association) v West Sussex County Council[2014] EWHC 4108 (Admin) . Paragraph 122 of the ES makes it clear that it was only referring to "hydrocarbon development and other downstream industrial processes" as being regulated by pollution control regimes. In other words, this passage in the ES explained why no assessment was being made of emissions from, for example, oil refineries. Likewise, the reference at the end of paragraph 121 to "facilities and process" beyond the site boundary and outwith HHDL's control should be understood in that same sense. It is plain that the ES did not rely upon lack of control or the existence of other regulatory regimes to justify the non-assessment of GHG from the combustion of refined oil products. The same applies to SCC's acceptance of that reasoning in paragraphs 121 to 122 of the ES. [130] The claimant's challenge does not relate to the non-assessment of GHG emissions once the crude oil has left the site, except for those arising from the consumption of the end products. There is no challenge to the non-assessment in the ES of GHG from, for example, the process of refining. Accordingly, once paragraphs 121 to 122 of the ES are read properly, the criticism made of the reliance placed upon lack of control and alternative regulatory regimes falls away. [131] We are left with the real reason given in paragraph 121 of the ES and paragraph 5.15 of the ES Review for non-assessment of GHG emissions from the use of refined oil products. This was that the essential character of the proposed development is the extraction and production of crude oil, and not the subsequent process of refining the crude oil at separate locations remote from Horse Hill, followed by the use of infrastructure and/or transport for the distribution of the end products, whether in the UK or elsewhere in the world. That explanation is sufficient to deal with any suggestion of irrationality. But it is further supported by the broad thrust of the elucidation of her contemporaneous thinking (as it was described by Mrs Townsend for SCC at the hearing) in paragraphs 15 to 31 of Dr Salder's witness statement.”
“[69] It is not possible to say at this stage where the oil produced would be refined or subsequently used. It could be refined and used in the United Kingdom or exported and then refined and used abroad. It might be refined overseas and then imported back into the UK.”
“The scope of the assessment is confined to the direct releases of greenhouse gases from within the wellsite boundary resulting from the Site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.”
“121. This assessment considers direct releases of greenhouse gases consistent with all phases of the proposed development as described within ES Chapter 4. The essential character of the proposed development is the extraction and production of hydrocarbons and does not extend to their subsequent use by facilities and processes beyond the planning application boundary and outwith the control of the Site operators. 122. The assessment methodology pays regard to national planning policy and guidance that establishes that decision-makers should “focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes”
“5.15 The assessment presented in the submitted ES focuses on the direct greenhouse gas emissions of the development and operation of the proposed wellsite. The potential contribution of the hydrocarbons that would be produced over the lifetime of the wellsite is not covered in the submitted ES, the reasons for excluding those emissions are set out in paragraphs 121 and 122 … of the submitted ES. The CPA accepts the argument set out in paragraphs 121 and 122 … of the ES and the justification for excluding consideration of the global warming potential of the produced hydrocarbons from the scope of the EIA process.”
“… subject to the imposition of conditions, together with controls through other regulatory regimes, the development would not give rise to unacceptable environmental or amenity impacts and the development is consistent with the NPPF and the development plan…”