The Office for Environmental Protection (“OEP”) announced on 8 February 2023 that it has filed an application with the Supreme Court for permission to intervene in the appeal against the Court of Appeal's decision in R (Finch) v Surrey County Council.

The Court of Appeal dismissed an appeal against the High Court's refusal of an application for judicial review of the planning permission granted for new wells and production at the oil site at Horse Hill, Surrey. The Supreme Court is due to consider whether Surrey County Council acted lawfully by not requiring the development’s Environmental impact assessment (“EIA”) to assess the impact of “downstream” greenhouse gas emissions resulting from the future combustion of oil produced by the new wells.

The OEP came into legal existence under the Environment Act 2021 (“EA 2021”). The OEP is tasked with enforcing and advising the Government on environmental law after the United Kingdom’s departure from the European Union. The EA 2021 empowers the OEP to be able to apply to intervene in proceedings that relate to a judicial review or statutory reviews brought by others that relate to an alleged failure by a public authority to comply with environmental law (section 39(7) EA 2021).

As part of the OEP’s wider enforcement powers under the EA 2021, it is also permitted to apply for judicial or statutory review where the breach is serious and the application “is necessary to prevent, or mitigate, serious damage to the natural environment or to human health”. This is called the ‘urgency condition’.

In this case, this is the first use of the OEP’s power to intervene in judicial review proceedings. This highlights the OEP’s responsibility in ensuring clarity in the law “to promote good environmental decision-making”, according to its General Counsel, Peter Ashford. The OEP’s decision further reflects the legal importance of the Supreme Court appeal in how planning authorities make decisions about which environmental impacts of a project it considers.

The OEP awaits a decision by the Supreme Court as to whether it is granted permission to intervene. The decision may well provide an insight into whether the newly formed regulator has teeth.

Written by Simon Cox.