Court of Appeal Dismisses Appeal by Frack Free Balcombe Residents’ Association
Public Law and Judicial Review, Planning and Environment, Cornerstone Climate
The Court of Appeal (Sir Keith Lindblom (Senior President of Tribunals), Lord Justice Singh and Lord Justice Holgate) has dismissed an appeal brought by the Frack Free Balcombe Residents’ Association (FFBRA) challenging the grant of planning permission for hydrocarbon exploration and appraisal at the Lower Stumble site in the High Weald Area of Outstanding Natural Beauty (AONB).
The Appellant was represented by Ruchi Parekh. The Respondent was represented by Tom Cosgrove KC and Ben Du Feu.
The appeal arose from a decision by a planning Inspector, acting on behalf of the Secretary of State for Housing and Communities, and Local Government to allow an appeal by Angus Energy Weald Basin No.3 Limited against the refusal of planning permission by West Sussex County Council.
The proposed development involves exploration and appraisal of oil resources and is subject to a 30-month temporary permission with full site restoration required thereafter. The High Court (Lieven J) had previously rejected FFBRA’s challenge on six grounds. Four of those grounds were considered by the Court of Appeal.
Ground 1: Consideration of Future Production
The Court rejected the argument that the Inspector had unlawfully taken account of the potential benefits of future commercial production without considering its harms. The Court held that the inspector had correctly limited his assessment to the exploration and appraisal phase and had not speculated about future production. This approach was consistent with existing case law, including Preston New Road Action Group.
Ground 2: Application of Policy M7a vs M7b
The Court found that the inspector had not erred in applying Policy M7a of the West Sussex Joint Minerals Local Plan, which deals with hydrocarbon development not involving hydraulic fracturing. The development did not include fracking, and the inspector expressly imposed a condition prohibiting it. The Court held that Policy M7b, which applies to proposals involving hydraulic fracturing, was not relevant and applying that instead would have been an error.
Ground 3: Consideration of Alternative Sites
FFBRA contended that the inspector misinterpreted the “exceptional circumstances” test for “major development” in the AONB, in Policy M13 of the joint minerals local plan and paragraph 177 of the NPPF. He ought to have considered “alternatives” outside the AONB. He failed to base his assessment, as he should have done, on “the need for the mineral”, concentrating solely, and wrongly, on the Lower Stumble hydrocarbon resource itself.
The Court held that the Inspector dealt properly with “alternatives”, lawfully applying the relevant policies – in particular Policy M13(c) – to this proposal for hydrocarbon exploration, in this location.
In this case the Lower Stumble hydrocarbon resource was the resource which the development was intended to explore and appraise. The whole purpose of the proposal was to establish whether a commercially viable resource was present in that location. To have attempted an assessment of alternatives at large, beyond that geological limit, would have been inconsistent with that purpose. The Court held that the policies allow the decision-maker a discretion to adapt the assessment of alternatives to the type and nature of the development proposed, its location, and the relevant need.
Ground 6: Risk to Ardingly Reservoir
The final ground concerned the inspector’s treatment the potential risk of water pollution, caused by the development, affecting the Ardingly Reservoir. The Court held that the inspector concluded, by a lawful exercise of planning judgment, that the development did not pose any unacceptable risk of water pollution. The assessment on which that conclusion rested was not flawed by any error of fact, or by any other unlawfulness. Given the mitigation measures proposed and the regulatory regime in place, the conclusion itself was unsurprising.
The inspector had been entitled to rely on the environmental permitting regime and advice from the Environment Agency, which raised no objections. The Court reaffirmed that planning decision-makers may assume that other regulatory regimes will operate effectively.
A full copy of the judgment is here.
