Judicial reviews are seldom out of the news these days, with even failed applications for them capturing the eager attention of journalists hungry for ammunition to bring public authorities to task for any of a wide range of failings, imaginary or otherwise.
Environmental campaigners also value the publicity generated for their causes, regardless of whether their applications for review succeed. But the list of infrastructure procurement initiatives stalled while the legal wrangling goes on is long, and growing. Now, a landmark Supreme Court judgment has increased the likelihood of an increasing number of applications for judicial review of planning decisions.
The Supreme Court has ruled that Surrey County Council should have considered the emissions from burning oil obtained from the drilling sites it granted planning approval for, and not just the narrower effects of extracting it. As a result, developers can no longer restrict environmental impact assessments to construction, production and decommissioning, but will have to produce and publish an assessment of the broad environmental impacts of a project.
This means that planning departments will now have to consider the global impacts of greenhouse gases related to projects they authorise. Major issues are raised by this. For example, how are the infrastructure, energy or mining sectors to determine if emissions downstream of their project is inevitably causally connected? How can it be ensured that the planning authority has the information required to lawfully determine a consent application?
Delays in planning are already blamed for a logjam of infrastructure projects; so much so that promises of reform feature in general election promises. A major worry is that as a result of this judgment already overworked planning authorities could respond by routinely rejecting any applications with downstream impacts (see News). Authorities might struggle to assemble the information that will now be required to lawfully determine applications, and anything produced will of course be open to challenge – so judicial reviews can be expected more frequently.
Although the Supreme Court judgment concerns an oil extraction project, it is expected to also affect public and private infrastructure projects across sectors like power generation, waste disposal, ports, airports, motorways and rail projects. Lawyers advise that parties will need to be well advised to ensure their projects don’t become bogged down in the planning process or risk judicial review.
The Supreme Court has decided to interpret the legislation expansively, implying an approach to planning that has previously been rejected by UK and European courts as being too wide an interpretation. Following Brexit, there is no route to challenge the judgment, in the European Court of Justice for example.
The council didn’t help its own case by reneging on an original promises to include combustion emissions in the project’s environmental impact assessment, meaning it couldn’t be considered before consent was granted. If this was a plan to avoid controversy by withholding that information from the public it has backfired spectacularly.
As pointed out in our News story, the judgment doesn’t lay down that projects must be refused if their downstream emissions are high, it forces planners to consider the issues. The problem will be in assembling the information and defending any decisions based on it from campaigners calling, inevitably, for judicial reviews.
Nick Barrett
Editor