Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 13 October 2023 |
| Neutral Citation | [2023] EWHC 2548 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1119/2023 |
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[2023] EWHC 2548 (Admin)
Mrs Justice Lieven
Case No: CO/1119/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr David Wolfe KC and Merrow Golden (instructed by Leigh Day Solicitors) for the Claimants
Mr Tom Cosgrove KC and Mr Ben Du Feu (instructed by Government Legal Department) for the First Defendants
The Second Defendants did not attend and were not represented
Ms Jenny Wigley KC (instructed by West Sussex County Council) for the Third Defendants
Hearing dates: 19 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 13 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is a statutory challenge under the Town and Country Planning Act 1990 (“TCPA”) to the decision of an Inspector appointed by the Secretary of State to grant planning permission for “exploration and appraisal comprising the removal of drilling fluids and subsequent engineering works with an extended well test for hydrocarbons along with site security fencing and site restoration” at Lower Stumble, Balcombe, Haywards Heath (“the Decision”).
The Claimant was represented by Dr David Wolfe KC and Merrow Golden. The First Defendant was represented by Tom Cosgrove KC and Ben Du Feu. The Second Defendant (“the Developer”) was not represented. The Third Defendant was represented by Jenny Wigley KC and only appeared in respect of Ground Four.
The Second Defendant applied for permission for exploration and appraisal operations to assess site suitability for commercial hydrocarbon production (“the Development”). The Development would have four phases, including an Extended Well Test (“EWT”) for up to 12 months including operation of a continuous flare and generator. The site is in the High Weald Area of Natural Beauty (“AONB”) and the proposal is agreed to be “major development” in the AONB for policy purposes. The Third Defendant (“WSCC”) refused permission for the Development on 10 March 2021 on the basis that the AONB “exceptional circumstances” test in national and local policy (see further under Ground 3 below) was not met. The Developer appealed that refusal which led to the Decision.
The Claimant raises six grounds of challenge, and Lang J granted permission on all of them. The Grounds are:
Ground 1: Unlawful to rely on the benefits without the harms of hydrocarbon extraction
Ground 2: Flawed interpretation of M7 of the West Sussex Joint Minerals Local Plan
Ground 3: Unlawful failure to consider alternatives to proposal outside the AONB
Ground 4: Failure to comply with the EIA Regulations
Ground 5: Failure to consider the impacts on climate change
Ground 6: Unlawful failure to assess impact on water resources
The Decision Letter
The Inspector set out the main issues at DL6 and the description of the site at DL7–12.
At DL14 he accurately summarises M7a of the West Sussex Joint Local Minerals Plan 2018 (“WSMLP”) which deals with “hydrocarbon development not involving hydraulic fracturing”. At DL15 he summarises M13, which covers major development in the AONB.
At DL19–25 there is a section headed “Other National Guidance and Data”. This refers to the National Policy statement on Energy, EN-1, and the importance of the UK having secure and reliable sources of energy, and to the Energy White Paper 2020.
At DL24–25 he refers to the quantum of domestic production of oil and the fact that domestic production is declining.
The DL 26–49 then deals with the planning effects of the proposal, including landscape and visual impact; local amenity; water impacts; highway impacts; health of safety; ecology; heritage and climate change. Most of which are not relevant to this challenge. I will refer to the specific relevant paragraphs under the Grounds below.
At DL46–50 he refers to the need for the development.
“46. In the ongoing transition to a net zero-carbon energy economy, over 98% of the decreasing, but for some years substantial, domestic demand for oil and gas will be met by North Sea reserves. Aside from a recent reversal due to reduced home demand, the UK has long been a net importer of oil. It is currently very uncertain to what extent demand will return to its level before the Covid pandemic lockdowns of 2020–22. This uncertainty is compounded by the continuing hostilities between Ukraine and Russia, disrupting international oil and gas supplies.
47. In the circumstances, it would plainly be inappropriate to rely upon imported oil both from the point of view of security of supply and with regard to sustainability in its broader sense.
48. There is nothing in current national or local policy to restrict the appraisal or production of hydrocarbons or to say that a proposal to explore and test a known hydrocarbon reserve should be refused on grounds that its yield might be of small scale. It is precisely the point of proposals like that in this appeal, to obtain such information and it would not be appropriate to anticipate the result of the EWT with conjecture that the ultimate yield of the well might be minimal.
49. The proportion of domestic supply won from onshore sources, currently mostly from a single facility in Dorset, is clearly of relatively small scale but that is not to say that it is insignificant or unimportant. The present proposal should not be refused merely because it might lead only to a small additional contribution, or even no contribution at all to essential domestic oil supplies.
50. There remains a significant national need for onshore hydrocarbon exploration and assessment for considerable time to come. This weighs greatly in favour of this appeal, given also the great policy weight still attributed nationally to the benefits of mineral extraction.”
At DL51 he deals with availably and costs of alternatives.
DL57–61 covers the conclusions:
“57. With reference to the provisions of JMLP Policies M7a and M13 and NPPF paragraphs 176, 177, 209 and 211, I have found that there are no evident comparable accessible or cost-effective alternatives to the appeal proposals and that the site could be restored to a high standard under the agreed planning conditions. There is no evidence that harm would occur due to the storage of hazardous substances on the site. I give modest weight to such benefit as would result to the local economy.
58. I have found that all adverse impacts of the development could be acceptably mitigated in planning terms but with the notable exception that there would be moderate adverse impact on the landscape of the AONB, contrary to the MSDP and NPPF.
59. Even such moderate harm to the AONB carries great weight in terms of the NPPF. Against that is to be balanced the evident national need I have identified for continued hydrocarbon exploration and assessment in the interests of energy supply security pending ultimate transition net carbon-zero energy provision.
60. In my overall judgement, the national need is the overriding consideration and furthermore amounts to the requisite exceptional justification for permitting this major development within the High Weald AONB.”
Ground One
The Claimant argues that the Inspector took into account the benefits of the production of hydrocarbons that might ultimately flow from the site but did not take into account the disbenefits of production. The Claimant relies heavily on the Court of Appeal decision in Ashchurch Rural Parish Council v Tewkesbury BC [2023] EWCA Civ 101. This was a somewhat odd case where the Local Planning Authority (“ LPA”) had granted permission for a road bridge over a railway, but with no connections to the wider road network. This was because funding existed for the bridge but at that time not for the connecting roads.
The LPA took into account the benefits of the wider future development, but not the disbenefits. The Court summarised the position at [64]:
“64. On a fair reading of the OR, the Planning Officer did place substantial weight on the contingent benefits that, in his assessment, would accrue from the development in Phase 1, and he invited the Committee to do the same. His overall approach was to invite the Committee to attribute substantial or significant weight to the prospective benefits of the wider development whilst directing them that they must leave out of account entirely any possible harms. Whilst it was open to the decision maker to treat the prospective benefits of the wider development as material factors, and it is understandable why they did, it was irrational to do so without taking account of any adverse impact that the envisaged development might have, to the extent that it was possible to do so, (which it was, albeit at a high level). The two go hand in hand; you cannot have one without the other. Ground 1 is therefore made out.”
The case which is closest to the facts of the present case is R (Preston New Road Action Group) v Secretary of State for Communities and Local Government [2018] Env LR 18 (“ PNRAG”). That concerned an application for hydrocarbon exploration through hydraulic fracturing at a site in Lancashire. One ground of challenge in that case was that the Secretary of State had taken into account the benefits of the production phase, but had not taken into account the disbenefits, see [6(3)]: “… inconsistency because he took into account the benefits of shale gas production but left out of account the harmful effects it would have…”. At [81]–[82] Lindblom LJ said:
“81. One...
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