Net Zero and downstream emissions in court this week

Monday 16 November 2020

The Claimant is represented by Marc Willers QC, of the Garden Court Environmental Law Team, leading Estelle Dehon of Cornerstone Barristers, instructed by Rowan Smith of Leigh Day.

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On 17-18 November 2020, the High Court will hear judicial review claim CO/4441/2019 challenging the grant of planning permission by Surrey County Council to Horse Hill Developments Ltd for production of oil for 20 years (ie beyond 2040) at Horse Hill in Surrey. The claimant, Sarah Finch, on behalf of Weald Action Group, bases the claim partly on error of law under the EIA Regulations 2017, arising from the failure to take into account the environmental protection objectives established by the United Kingdom which are relevant to the project, namely the urgent need to address the climate crisis and the requirement to reduce GHG emissions by at least 100% below the 1990 baseline (known as the “Net Zero” obligation).

The claim will also consider whether the environmental statement was unlawful because it only assessed the direct effects of the development. The indirect effects arising from combustion of the oil (known as “downstream effects” or “scope 3 emissions”) were excluded from the assessment because the developer does not control those emissions. Friends of the Earth has intervened in the claim in writing, making submissions on the correct approach to the Net Zero obligation and the downstream emissions.

Finally, the claim will consider whether the developer was correct to exclude the indirect effects from assessment because paragraph 183 of the National Planning Policy Framework and paragraphs 12 and 112 of the Minerals PPG provide that the focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). The relevant policies provide that planning decisions should assume that these regimes will operate effectively. The Secretary of State for Communities, Housing and Local Development has been joined as a party to make submissions on this question.

A version of this press release was first published on Cornerstone Chambers' website on 16 November 2020, click here to view it.

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