Key judgments

R (Finch) v Surrey County Council [2022] EWCA Civ 187,  [2022] WLR(D) 89 – The question of whether carbon emissions from end-product use should be accounted for in the EIA for a project has created a lot of buzz in the Courts the past few months, with a number of cases being argued on this point, including Finch. The Court of Appeal overruled the High Court’s judgment that such carbon emissions can never constitute ‘indirect effects’ of a project, and thus need never be included in an EIA. The appropriate test to be applied in such cases is ‘whether the impact – be harmful or beneficial – is sufficiently causally connected to the development to be an indirect effect of it under the legislation’ (Lord Justice Lindblom at [70]). As such, carbon emissions from product use can fall into this category, although, in this scenario the majority ruled that it did not. The dissenting judgement was given by Lord Justice Moylan. The point was argued also in the more recent case of R (Friends of Earth Ltd) v Secretary of State for International Trade/Export Credits Guarantee Department & Chancellor of the Exchequer [2022] EWHC 568 Admin, discussed below. There is no doubt that this an area with a growing number of conflicting judgments and one that needs to be closely followed in the coming months.

R (Friends of the Earth Ltd) v Secretary of State for International Trade / Export Credits Guarantee Department & Chancellor of the Exchequer [2022] EWHC 568 (Admin) – The High Court handed down a split decision over the legality of the UK government’s approval of $1.15bn of export credit finance for a huge liquified natural gas (LNG) project in Mozambique. The judgment is long and complex, but the key question for the Court to decide was whether the failure of UK Export Finance’s climate change impact assessment to quantify the downstream (or ‘Scope 3’) emissions from the gas to be produced by the project rendered the decision to invest in it incompatible with the UK’s obligations under the Paris Agreement. Stuart-Smith LJ held that “UKEF was entitled to form the view that the support for the Project that was in contemplation was in accordance with its obligations under the Paris Agreement as properly understood. That view was at least tenable” [240], while Thornton J concluded that “the failure to quantify the Scope 3 emissions, and the other flaws in the Climate Report mean that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2(1)(c) of the Paris Agreement on Climate Change and a pathway to low greenhouse gas emissions” [335]. The 1-1 split means that the judicial review fails, but the High Court took the unusual step of issuing an order giving Friends of the Earth permission to appeal. Provided that FoE chooses to proceed, therefore, the Court of Appeal will settle the issue.

R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin) – The Court considered the meaning of the phrase ‘in accordance with’ approved plans in a s.106 condition of an outline planning permission (OPP). The Court adopted the Oxford English dictionary meaning of the phrase in that it meant ‘in agreement or harmony with; in conformity to; according to’. Looking at both the nature of the approved plans and comparing the condition with other s.106 conditions, the Court concluded that the phrase did not stipulate a strict following of the approved plans and that the determination of the degree of conformity may well involve matters of planning degree and judgement. The judgment suggests that LPAs should be careful when using the phrase ‘in accordance with’ and use words such as ‘strictly’ or ‘broadly’ to demonstrate the degree of conformity that is required.

R (Tarian Hafren Severn Shield CYF) v Marine Management Organisation [2022] EWHC 683 (Admin), [2022] WLR(D) 141 – this judgment gives useful guidance on the powers of the Marine Management Organisation (MMO) when granting variation of a marine licence under MCAA 2009. The Court concluded that MMO can vary a licence to add new activities as long as the addition can be properly deemed as a variation of the licence. The Court added that Parliament had conferred a broad power on the MMO in terms of the reasons for which it may act to vary a licence and a narrow reading should not be given to this power.

Key consultations

Environment Act 2021: environmental targets and Nature Recovery Strategy (both close 11 May 2022) – Defra is seeking views on new targets under the Environment Act 2021 to improve the natural environment, including proposals on biodiversity on land and in the sea, water quality, resource efficiency and waste reduction, and air quality. They also seek views on the initial policy proposals contained in the Nature Recovery Green Paper, regarding protected sites and species. Proposed targets aim to protect 30% of land and sea by 2030, and to halt species decline by 2030.

UK Offshore Energy Strategic Environmental Assessment 4 (OESEA4) (closes 27 May 2022) – The Department for Business, Energy and Industrial Strategy (the Department) is conducting a Strategic Environmental Assessment (SEA) of a draft plan/programme for further leasing for renewable energy (offshore wind, wave and tidal technologies), further licensing for offshore oil and gas exploration and production, and further leasing/licensing for hydrocarbon gas storage and unloading, carbon dioxide transportation and storage, and the offshore production and transport of hydrogen.

Local air quality management policy guidance (closes 6 June 2022) – Defra are seeking views on the planned revision to the statutory Local Air Quality Management (LAQM) Policy Guidance. This guidance relates to Local Authority action on air quality in England (excluding London). It is being revised to reflect the legislative changes introduced through the Environment Act 2021 and clarify roles and responsibilities within local government, and Defra is seeking views on proposed new areas for local authority consideration.

Developing the UK Emissions Trading Scheme (UK ETS) (closes 17 June 2022) – The UK ETS Authority – made up of the UK government, Scottish Government, Welsh Government and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland – is seeking stakeholder views on proposals to develop the UK ETS which operates across England, Scotland, Wales and Northern Ireland. This scheme replaces the EU ETS post-Brexit.

Upcoming events

UKELA Annual Conference 2022

Save the dates for UKELA’s Annual Conference 2022 which is taking place across 4 days (14 – 17 June 2022). The programme for the conference can be found here. Come along to hear from some fantastic speakers including our very own Merrow Golden from Francis Taylor Building!

UKELA’s Andrew Lees Prize Essay competition

The Annual Andrew Lees Prize is now open for submissions! This year’s title is: ‘“Current regulatory approaches to Net Zero are ineffective in addressing the climate crisis.” Discuss’. The deadline for submissions is 26 April 2022.

Francis Taylor Building’s Annual Planning Forum (Hybrid) 2022

FTB’s Annual Planning Forum is going to take place on 25 April 2022 and bookings are now open. This is a hybrid event, so you can attend the venue (IET Savoy Place) or watch it online. It looks to be a fantastic seminar covering topics such as, Heritage Harm Disputes, Green Belt and Decommissioning and life-cycle sustainability.

Get outdoors!

To help us all become nature connecters as well as nature defenders, The Green Olive Network will be making regular recommendations for fun outdoor activities with an environmentally conscious slant.

Did you know that Sunday 1st May is International Dawn Chorus Day? Why not get up early and go take a listen. You don’t need to live in the countryside to hear all kinds of different birds. The Wildlife Trusts have put together lots of information on which species you can expect to hear, even in urban settings. Find out what to listen out for here.