OEP seeks permission to intervene in Supreme Court appeal to highlight importance of clarity in environmental law
Time after time, with planning applications for developments or infrastructure, the carbon emissions of the building or activity itself are considered, but NOT the carbon emissions that result from it. For example, companies drilling for oil have to account for the carbon emissions from their drilling operations, but can ignore the carbon from burning the fuel. Airports have to measure the emissions from their operations and buildings on the ground, but can ignore the emissions from the planes, the flights of which are facilitated by the airport. Now the Office for Environmental Protection (OEP) has filed an application with the Supreme Court for permission to intervene in the appeal of R (Finch) v Surrey County Council highlighting the importance of clarity in the law to promote good environmental decision-making. This is whether account should be taken, by Surrey County Council, in granting planning permission, of the oil drilled from wells in Surrey. The OEP is now waiting to hear whether the Supreme Court grants permission for it to intervene. This case could set a precedent for refusal for other high carbon developments, including airports.
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OEP seeks permission to intervene in Supreme Court appeal to highlight importance of clarity in environmental law
09.02.2023 (OEP – Office for Environmental Protection press release)
The Office for Environmental Protection (OEP) has filed an application with the Supreme Court for permission to intervene in the appeal of R (Finch) v Surrey County Council highlighting the importance of clarity in the law to promote good environmental decision-making.
The appeal, which was filed yesterday (Wednesday, 8 February) concerns a judicial review of the grant of planning permission for new oil wells on a site in Surrey. The Supreme Court will consider whether Surrey County Council (SCC) acted lawfully by not requiring the development’s environmental impact assessment (EIA) to assess the impact of greenhouse gas emissions resulting from the future combustion of oil produced by the new oil wells. The OEP’s intervention is prompted by this failure or alleged failure of SCC to comply with environmental law.
OEP General Counsel, Peter Ashford, said: “Environmental impact assessment is so important for integrating the environment into planning decision-making. We are interested in this case because of the opportunity to clarify the law here to ensure proper decision-making that enhances environmental protection. We hope that the Supreme Court will take this opportunity, and will develop principles for determining the proper approach to the assessment of indirect effects under the EIA legislation.”
We will now wait to hear whether the Supreme Court grants permission for the OEP to intervene.”
Notes to Editors
1. Full reference for case: R (Finch) v Surrey County Council [2022] EWCA Civ 187
2. Under section 41 Environment Act 2021 the OEP must publish a statement where it applies to intervene in a case
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See earlier, cases when the carbon emissions from the aircraft using the airport have been excluded when considering planning permission:
High Court has ruled that expansion of Bristol Airport will be allowed to go ahead
Campaigners against the expansion of Bristol airport legally challenged the decision of the Planning Inspectorate (PI), a year ago. The High Court has now ruled that the expansion can go ahead. North Somerset Council rejected the expansion in 2020 on environmental grounds but that decision was later overruled by the PI. Expansion would see the airport increase its capacity from 10 million to 12 million passengers per year. Opponents of the growth, through the Bristol Airport Action Network (BAAN), are very disappointed, but are already planning on challenging the ruling. BAAN has been arguing planning inspectors were wrong to ignore the impact a bigger airport would have on climate change. In his decision Lord Justice Lane said expanding the airport would impact the environment but that the decision is for central government not local. There is no proper law on UK aviation, or any legal means to control cumulative CO2 emissions from many airport expansion. The Climate Change Committee say there are big risks in the airline industry hoping for low carbon fuels in future, and recommend that “there should be no net expansion of airport capacity”.
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Luton Airport dismisses climate change as factor in planning inquiry
A public inquiry has begun into Luton Airport’s expansion plans. Luton Borough Council, whose company Luton Rising owns the airport, approved the growth plans in December. The separate private company that runs the airport, London Luton Airport Operations Limited (LLAOL), applied to increase passengers from 18 million to 19 million per year and to amend the noise contours. The government said an inquiry should review the main aspects of development. Three planning inspectors are expected to participate during the inquiry, Richard Clegg, Sheila Holden and Geoff Underwood. The agenda includes air quality, climate change, the impact of noise, sustainability, socio-economic implications, the influence of other considerations on the overall planning balance, and whether it would be consistent with the local development plan and other policies. It is unsatisfactory for the owner of the airport to also be its planning authority. Local campaign group, LADACAN, expect the hearings to shine some uncomfortable light how the focus has been just on maximising revenues, while ignoring other vital considerations, such as climate and environmental issues.
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Appeal by Southampton campaigners, against runway extension, refused by Court of Appeal
The Court of Appeal has refused an appeal by a local campaign group, GOESA Ltd (Group opposed to expansion of Southampton Airport), upholding the decision by Eastleigh Borough Council that the Southampton Airport runway can be lengthened by 164 metres. An associated blast screen and an expansion of the current long-stay car park are also part of the approved scheme. It is now over 18 months after the runway extension was first approved by the council. In August 2021, campaigners from the Airport Expansion Opposition Southampton group challenged the planning permission in court over concerns that the proposal would increase noise, traffic, pollution and carbon emissions. The High Court rejected the claim. In December 2021, the application was renewed and the campaigners were granted a judicial review. The campaigners argued that the decision to extend the runway was “unlawful” as it was rushed, and skipped essential assessments and formalities. In May 2022 the High Court rejected the JR and ruled that the approval had not been unlawful. Campaigners appealed against this decision. That has now been rejected. There are no further legal options. It is totally at variance with the rapid action needed in the next few years, to cut the UK’s carbon emissions.
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Groups write to Government asking for a moratorium on airport expansion planning applications
Representatives of groups at some of the largest UK airports have written to both the Secretaries of State for Transport, and Housing, Communities and Local Government, to request a halt to airport expansion. The letter asks them to suspend the determination by all planning authorities of applications to increase the physical capacity of UK airports, or their approved operating caps, until there is a settled UK policy position against which such applications can be judged. Many UK airports are seeking – or have announced their intention to seek – planning approval to increase their capacity and/or their operating caps. In aggregate it has been estimated that proposals announced by UK airports would increase the country’s airport capacity by over 70% compared to 2017. There is no settled UK policy on aircraft noise, or policy on aviation carbon and how the sector will, as the CCC advises, “limit growth in demand to at most 25% above current levels by 2050”. The letter says: “Until a settled policy with set limits is established for greenhouse gas emissions and noise there should be a moratorium on all airport expansion planning applications.” The emissions of the aircraft need to be considered, not only the emissions from airports, on the ground.