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Climate Considerations in Planning Permissions for New Developments in England

In a landmark decision, the UK Supreme Court in R (Finch) v Surrey County Council [2024] UKSC 20 has redefined the scope of environmental assessments required for planning permissions. The judgment mandates that developers must now assess the downstream greenhouse gas (GHG) emissions of their oil and gas projects. This ruling has profound implications for businesses seeking planning permission for certain new development projects, compelling them to incorporate climate considerations more comprehensively than ever before. The best way to ensure your business can comply with this and other environmental and climate change regulations and requirements is to talk to our Coventry-based Commercial Property Solicitors.

Understanding the Supreme Court Judgment

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017  provide that, before planning permission can be granted for certain projects, a developer must produce an environmental impact assessment (EIA) which describes and assesses the likely “direct and indirect significant effects” of the project on the environment.

The Supreme Court’s decision emerged from a case involving Surrey County Council’s grant of planning permission to Horse Hill Developments Ltd for the expansion of an onshore oil well site. The key issue was whether the EIA for the project should have included the downstream GHG emissions resulting from the eventual use of the extracted oil. The Court ruled that these emissions are an indirect but inevitable consequence of the project and must be included in the EIA​.

This judgment emphasised that the extraction of oil directly leads to its combustion, releasing GHGs, and thus falls under the environmental impacts that must be assessed. The Court dismissed the notion that refining or the geographical distance of emissions could break the chain of causation, underscoring that the environmental impact of GHG emissions is a global concern and must be addressed comprehensively​.

What are the key climate considerations for businesses?

  1. Comprehensive Environmental Impact Assessments (EIAs)

Businesses must ensure their EIAs cover both direct and indirect environmental impacts, including downstream emissions. This means considering the full lifecycle of the project, from resource extraction to eventual use and disposal. The ruling mandates that emissions resulting from the end-use of products, such as fuel combustion, are included in the EIA​.

  1. Causal Connection and Scope of Emissions

The Supreme Court’s application of the “but for” test of causation implies that any emissions that would not occur but for the project must be assessed. This expands the scope of EIAs significantly, requiring developers to account for all foreseeable environmental effects of their projects​.

  1. Policy Alignment and Compliance

While national policies may promote certain types of development, such as domestic oil and gas production, these policies do not exempt projects from environmental assessment obligations. Businesses must navigate these policies while ensuring full compliance with EIA regulations to avoid legal challenges​.

  1. Sustainable Design and Mitigation Strategies

To mitigate the environmental impact, businesses should incorporate sustainable design principles and consider alternative methods that reduce emissions. This can include adopting renewable energy sources, enhancing energy efficiency, and implementing carbon capture and storage technologies​​.

  1. Stakeholder Engagement and Transparency

Engaging with stakeholders, including local communities and environmental groups, is crucial. Transparent communication about the environmental impacts and the measures being taken to mitigate them can help build support and reduce the risk of opposition or legal challenges​.

Legal and Practical Implications

The Finch judgment is likely to have significant implications beyond the oil and gas sector, affecting various industries involved in carbon-intensive activities. Developers, including those based in Coventry and Warwickshire, must be prepared for increased scrutiny of their environmental assessments and the potential for legal challenges if their EIAs are found lacking​.

Furthermore, the ruling may influence future regulations and guidelines, prompting a shift towards more rigorous environmental assessments at both national and local levels. Businesses should stay informed about regulatory developments and be proactive in updating their compliance strategies​.

Conclusion

The Supreme Court’s decision in R (Finch) v Surrey County Council marks a turning point in how environmental impacts are assessed in planning permissions. For businesses, this means a greater emphasis on comprehensive and transparent environmental assessments that include downstream emissions. As climate considerations become more integral to planning processes, businesses must adapt by embracing sustainable practices and ensuring robust compliance with environmental regulations.

Looking ahead, businesses should also be prepared for potential legislative changes that may arise in response to this judgment. The government’s approach to balancing economic development with environmental protection will be crucial in shaping future planning policies. Staying ahead of these changes will be key to successful and sustainable business operations in the evolving regulatory environment.

If you require legal advice concerning commercial land developments, please call our office today on 02476 231000 or email enquiries@askewslegal.co

Please note that this article is for information purposes only and does not constitute legal advice.