Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 20 July 2023 |
| Neutral Citation | [2023] EWHC 1854 (Admin) |
| Docket Number | Case No: CO/2594/2022 & CO/2591/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1854 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/2594/2022 & CO/2591/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Estelle Dehon KC and Alex Shattock (instructed by Leigh Day) for the Claimant
James Strachan KC and Robert Williams (instructed by Government Legal Department) for the First Defendant
David Elvin KC and Matthew Dale-Harris (instructed by Hill Dickinson LLP) for the Third Defendant
The Second, Fourth and Fifth Defendants did not appear and were not represented
Jenny Wigley KC (instructed by Sharpe Pritchard LLP) for the Claimant
James Strachan KC and Robert Williams (instructed by Government Legal Department) for the First Defendant
David Elvin KC and Matthew Dale-Harris (instructed by Hill Dickinson LLP) for the Third Defendant
The Second Defendant did not appear and was not represented
Hearing date: 8 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
Protect Dunsfold Ltd (‘Protect Dunsfold’) and Waverley Borough Council (‘Waverley’) bring claims pursuant to s.288 of the Town and Country Planning Act 1990 (‘the 1990 Act’) challenging a decision of the Minister of State for Housing, taken on behalf of the Secretary of State, to grant planning permission for proposed development at Land South of Dunsfold Road and East of High Loxley Road, Dunsfold, Surrey (‘the Site’). The decision was taken on 7 June 2022. The Secretary of State accepted the recommendation made by his Inspector, in a report dated 8 March 2022 (‘the Inspector's Report’ or ‘IR’), to allow an appeal under s.78 of the 1990 Act brought by the third defendant (‘UKOG’) against the refusal of planning permission for the proposed development by Surrey County Council (‘Surrey’).
The proposed development consists of:
“the construction, operation and decommissioning of a well site for the exploration and appraisal of hydrocarbon minerals from one exploratory borehole (Loxley-1) and one side-track borehole (Loxley-1z) for a temporary period of three years involving the siting of plant and equipment, the construction of a new access track, a new highway junction with High Loxley Road, highway improvements at the junction of High Loxley Road and Dunsfold Road and the erection of a boundary fence and entrance gates with restoration to agriculture.”
On 2 March 2023, Lane J granted Protect Dunsfold permission to pursue two grounds and Waverley permission to pursue one ground which is to the same effect as Protect Dunsfold's first ground. Accordingly, the claimants contend that:
i) the decision is unlawful by reason of the failure of the Inspector and the Secretary of State to have regard to the requirement in the first sentence of paragraph 176 of the National Planning Policy Framework (20 July 2021, ‘the Framework’), that “ [g]reat weight should be given to conserving and enhancing landscape and scenic beauty in … Areas of Outstanding Natural Beauty”, or policy RE3 of the Waverley Borough Local Plan (‘WBLP’), or alternatively to give reasons for departing from that policy (‘Ground 1: Alleged failure to give great weight to harm to the AONB’);
In addition, Protect Dunsfold contends that:
ii) The decision is unlawful by reason of the failure of the Secretary of State to explain substantial inconsistencies with his decision in the Ellesmere Port appeal, published on the same day as the challenged decision (‘Ground 2: Alleged inconsistency with the Ellesmere Port decision’).
B. The facts
Protect Dunsfold is a company limited by guarantee incorporated on 28 May 2019 to represent the views of local residents opposed to hydrocarbon development in the Dunsfold area. Waverley is the Borough Council, and Surrey is the County Council, for the area in which the proposed development is located.
The Site forms part of a large agricultural field in use for grazing. The proposed access would cross this and adjacent fields to join the main road network on High Loxley Road which connects to Dunsfold Road. Dunsfold Road defines the southern edge of the Surrey Hills Area of Outstanding Natural Beauty (‘AONB’). The Site lies just to the south of Surrey Hills AONB, forming part of the setting of the AONB, and it is within an Area of Great Landscape Value (‘AGLV’).
UKOG applied for planning permission on 26 April 2019. Against the recommendation of officers, Surrey refused planning permission on 15 December 2020. The reasons for refusal were:
“1. It has not been demonstrated that the highway network is of an appropriate standard for use by the traffic generated by the development, or that the traffic generated by the development would not have a significant adverse impact on highway safety contrary to Surrey Minerals Plan Core Strategy 2011 Policy MC15.
2. It has not been demonstrated that the applicant has provided information sufficient for the County Planning Authority to be satisfied that there would be no significant adverse impact on the appearance, quality and character of the landscape and any features that contribute towards its distinctiveness, including its designation as an Area of Great Landscape Value, contrary to Surrey Minerals Plan Core Strategy 2011 Policy MC14(iii).”
UKOG appealed the refusal of planning permission and an inquiry was held (remotely) before an Inspector appointed by the Secretary of State over nine days, starting on 27 July 2021. Waverley participated in the inquiry as a main party, pursuant to rule 6 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. Protect Dunsfold did not appear at the inquiry but submitted representations in support of Surrey's refusal.
The Inspector identified the “ main issues” as:
“• the effect of the proposal on landscape character and appearance of the area, including that of the Surrey Hills Area of Outstanding Natural Beauty (AONB) and Area of Great Landscape Value (AGLV);
• the effect on living conditions for residential and commercial activities local to the site, with particular regard to noise and disturbance; and
• the effect on highway safety, including the suitability of the road network and traffic movements associated with the operation.” (IR §11.2)
The impact of the proposed (exploratory stage) development on greenhouse gas emissions was not a main issue but Waverley's submissions addressed the negative impact on greenhouse gas emissions of onshore gas production. Protect Dunsfold's representations did not address greenhouse gas emissions or climate change issues more generally. Other third parties, Ms Finch and the Weald Action Group raised issues as to the compatibility of an application for hydrocarbon exploration and appraisal with the UK's targets for reducing reliance on fossil fuels. UKOG adduced a statement addressing the extent of greenhouse gas emissions that would be caused by the proposed development from Tom Dearing, an associate director at RPS and a Chartered Environmentalist. Mr Dearing predicted that the unmitigated emissions would be either 28,778 tonnes of CO2e or 29,111 tonnes of CO2e, depending on the method of calculation. Mr Dearing's evidence was uncontested and he was not called to give oral evidence.
On 5 January 2022, the appeal was recovered for the Secretary of State's determination under s.79 of the 1990 Act. The Inspector sent his report to the Secretary of State on 8 March 2022, with a recommendation that the appeal be allowed. On 7 June 2022, the Secretary of State made the challenged decision allowing UKOG's appeal.
C. The legal and policy framework
Section 288 appeals
This appeal is brought pursuant to s.288 of the 1990 Act. The principles that guide the court in handling a challenge under section 288 were reiterated by Lindblom LJ in St Modwen Developments Ltd v Secretary of State for Communities and Local Government (Practice Note) [2017] EWCA Civ 1643, [2018] PTSR 746 at [6] (‘the St Modwen Principles’):
“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to rehearse every argument relating to each matter in every paragraph: see the judgment of Forbes J in Seddon Properties Ltd v Secretary of State for the Environment (1978) 42P & CR 26, 28.
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration: see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, 1964B-G.
(3) The weight to be attached to any material consideration and...
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