Jurisdiction(s):
United Kingdom

EIA must assess downstream emissions; substitution informs impact, not significance; Whitehaven ‘net zero’ coal mine permission quashed; NPPF ‘coal test’ imposes evidential burden; Simplex quashing test reaffirmed (England and Wales)

Published on: 14 October 2024

Published by a LexisNexis Planning expert

Legal News

Article summary

South Lakeland Action on Climate Change—Towards Transition v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 2349 (Admin)

What are the practical implications of this case?

The judgment brings welcome clarity to the steps required when conducting EIAs and provides an important steer on how the courts will treat applications that depend on ‘substitution’ reasoning. The central message is straightforward: developers and planning authorities must ensure the EIA includes an appraisal of downstream emissions arising from the proposal.

It will not suffice to maintain that such emissions need not be assessed simply because they will be counterbalanced or ‘offset’ by some other factor. While the ruling leaves scope for promoters to argue that their scheme has a neutral environmental effect by advancing a substitution case, any material relied upon must be scrutinised under the 2011 regulations, enabling public participation in that assessment.

Notably, the court emphasised that the applicant for permission bears the responsibility to provide information on the project’s downstream emissions. That information must be brought forward through the EIA process, rather than excluded from assessment on the basis of an asserted offset, if it is to be properly considered...

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