Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government (First Defendant) Surrey County Council (Second Defendant) Leath Hill Action Group (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 25 July 2013 |
| Neutral Citation | [2013] EWHC 2643 (Admin) |
| Docket Number | CO/12660/2012 |
| Date | 25 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 2643 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/12660/2012
Mr A Newcombe QC and Mr Westmoreland Smith (instructed by Charles Russell) appeared on behalf of the Claimant
Mr Charles Banner (instructed by the Treasury Solicitors) appeared on behalf of the First Defendant
The Second Defendant did not appear and was not represented
Mr S Whale appeared on behalf of the Third Defendant
(As Approved)
The claimant, Europa Oil and Gas Limited, applied in 2008 to Surrey County Council, the second defendant, for planning permission for development best described in the inspector's decision letter, paragraph 2, as follows:
"Construction of an exploratory drillsite to include plant, buildings and equipment; the use of the drillsite for the drilling of one exploratory borehole and the subsequent short term testing for hydrocarbons; the erection of security fencing and the carrying out of associated works to an existing access and track all on 0.79ha, for a temporary period of up to 3 years, with restoration to forestry."
That language is apt to cover both exploration and appraisal through testing. The purpose of the proposed development was described by the inspector in paragraph 5 of his decision letter:
"The purpose of the proposed development is to explore for hydrocarbons in the Holmwood Prospect, which is within UK Onshore Licence PEDL143. In broad terms, the Prospect is located beneath Coldharbour village and the proposal would involve offset drilling. There would be four phases: site clearance and preparation; equipment assembly and drilling operations; testing and evaluation (if hydrocarbons are found) and site reinstatement. The appellants consider that these phases would take 6 weeks, 5 weeks, up to 4 days and 6 weeks respectively. Planning permission is sought for a temporary period of 3 years, with operations extending over an 18 week period. The principal elements of the development are set out more fully in the Statement of Common Ground at paragraph 2.2. The development would be for exploratory purposes only, to establish whether hydrocarbons are present. I approach this decision solely on that basis. If viable reserves were found, a separate planning application for a suitable location would be required."
Surrey County Council refused permission in 2011 contrary to its officer's recommendations. The site in question is near Leath Hill in the Metropolitan Green Belt and the Surrey Hills Area of Outstanding Natural Beauty (AONB). The development was, and is, a matter of considerable local controversy but the reasons for refusal did not include that the development was inappropriate development in the Green Belt.
The claimant appealed against the refusal. The inspector held a public inquiry into the appeal. He dismissed it in a decision letter of 26 September 2012. He concluded that the development proposed was inappropriate development in the Green Belt and harmful to it by reason both of its inappropriateness and, although temporary and reversible, because of the actual harm it would do in the 18 weeks it would take to prepare the site, carry out the exploratory drilling and complete the works of site restoration.
The inspector attached moderate weight to the visual harm and the effect on the tranquility of the AONB because the harm would be temporary and reversible. He concluded that exploration for oil and gas was consistent with national policies and there was no alternative site from which this prospect could be explored. The uncertainty over whether exploratory drilling could find any oil or gas and the relatively small scale of the estimated resource meant that the harm he had identified to the Green Belt both by reason of inappropriateness and other harm, was not outweighed by the need for minerals. Accordingly, no very special circumstances existed to permit this inappropriate development in the Green Belt.
The claimant challenges that decision under S.228 of the Town and Country Planning Act 1990 on a variety of inter-related grounds. The decision was beyond the inspector's powers on grounds which I summarise as being:
1. He had wrongly concluded that the development was neither mineral extraction nor engineering operation; and so was not appropriate development in the Green Belt for the purposes of either the National Planning Policy Framework, NPPF, or the relevant development plan policy in the Surrey Minerals plan Core Strategy, MCS, 2011.
2. The inspector had misunderstood the significance of the temporary nature of the development, for the purpose of judging the presence of, and weight, to be given to any effect it had on the openness of the Green Belt or the purposes of the inclusion of the land in the Green Belt. He had also failed to give legally adequate reasons for his conclusions.
The day before this case came on for hearing before me, the first defendant the Secretary of State for Communities and Local Government changed his mind about certain aspects of the inspector's decision. In particular, he no longer supported the inspector's approach to whether this development was capable of being mineral extraction or an engineering operation, and so capable of being appropriate development in the Green Belt. He continued to support the decision on the grounds that that error, as he now saw it, would not alter the inspector's conclusion that the particular development in this case actually was inappropriate for the reasons which the inspector gave. The error, as it was now seen by the Secretary of State, could have no effect on the decision. Mr Banner, who appeared for him, adjusted his skeleton argument overnight accordingly.
Mr Whale, for the Leath Hill Action Group, the third defendant which had objected to the development at the enquiry, did not accept that the inspector had erred in the way now asserted by the Secretary of State but also maintained that if error he made, it could have had no effect on the outcome of the inquiry.
The County Council were not represented but had been alerted to the Secretary of State's last minute change of position.
The decision letter
The argument before me requires a certain amount of this to be set out. Paragraph 6 sets out the issues which the inspector then deals with in sequence in the decision letter. The first main issues were:
"(i) Whether the proposal amounts to inappropriate development in the Green Belt; ii the effect on Green Belt openness and on the purposes of the Green Belt."
I note the separation of the two in that way.
Main issue (vii) is the overall balance between the harm to the Green Belt through inappropriate development —if it is inappropriate —and any very special circumstances which could outweigh that.
Paragraph 7 of the decision letter and on sets out development plan policies. I note that he sets out part only of policy MC3 (from the MCS) and does so in these terms:
"Policy MC3 deals with mineral development in the Green Belt. Amongst other things it requires in respect of the development other than extraction and primary treatment, demonstration that very special circumstances exist to outweigh the harm by reason of inappropriateness and any other harm."
In paragraph 11, the inspector turned to the NPPF as a material consideration saying that the relevant development plan policies were broadly consistent with it and were neither silent, absent, nor, on the relevant policies, out of date. That was a position common to the parties at the inquiry.
Paragraphs 15 and 16 are the two paragraphs largely disavowed recently by the Secretary of State. They comprise the inspector's views on main issue (i) and appear in the report section entitled: "Whether this would be inappropriate development in the Green Belt."
"15. As I set out above, this proposal is for exploratory drilling rather than for the production of hydrocarbons. It is consistent with paragraph 147 of the Framework to clearly distinguish between the three phases of development (exploration, appraisal and production) when considering planning issues arising from on-shore oil and gas development. I have considered the appellants' contention that this exploratory development should be regarded as part of mineral extraction. However, in the light of paragraph 147 of the Framework, this does not seem to me to be the correct approach. In that context, I do not consider that this development falls within the specific term "mineral extraction", which is the production phase and is cited in paragraph 90 of the Framework as a category of development which is not inappropriate, subject to the effect on Green Belt openness and purposes. Nor does the development, when considered as a whole, fall into the category of "engineering operations", which is also referred to in paragraph 90, although it includes elements of such operations. Moreover, the Framework does not exclude temporary development from amounting to inappropriate development.
16. Having regard to the above, I conclude that the development would amount to inappropriate development. Paragraph 87 of the Framework sets out that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. This requirement is also reflected...
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