High Court grants permission for statutory review of Surrey gas drilling project

03 Mar 2023

Planning and Environment, Cornerstone Climate

Yesterday, the High Court granted permission after an oral renewal hearing for Waverley Borough Council and local group Protect Dunsfold Ltd to bring a statutory review challenge against the grant of permission for an exploratory gas drilling project in the Surrey Hills. 

In June 2022, then Housing Minister Stuart Andrew MP granted permission to UK Oil and Gas plc to explore the site at Loxley, on the outskirts of the Surrey Hills Area of Outstanding Natural Beauty (AONB). 

Mr Justice Lane granted permission on two grounds.

Harm to the AONB

It was held to be arguable that the decision-maker failed to apply paragraph 176 of the NPPF correctly. This policy provides that “great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty”. 

While acknowledging that decision-makers are not “required to use the words ‘great weight’ as if it were some form of incantation” (Bayliss v SSCLG [2014] EWCA Civ 347 [18]), Lane J nevertheless found that the Minister in the present case arguably had not approached his consideration of the potential harms to the AONB from the correct starting point of attributing great weight to the purpose of conserving and enhancing it. 

He contrasted the absence of a clear reference to NPPF, para. 176 in the decision letter with the explicit attribution of great weight to the benefits of mineral extraction, in line with NPPF, para. 211. 

Inconsistency with Ellesmere Port decision

It was also held to be arguable that the Minister failed to take into account a material consideration and/or failed to give reasons for departing from the Secretary of State’s contemporaneous decision not to grant permission for another gas testing project at Ellesmere Port on climate change grounds. 

In the Ellesmere Port decision, issued on the same day on 7 June 2022, permission was refused due to the impact of the proposed development on climate change, due to the anticipated unmitigated greenhouse gas (GHG) emissions. In the Dunsfold decision, despite the anticipated GHG emissions being slightly higher than for Ellesmere Port, the Minister found that the proposed development complied with the climate change policies in Section 14 of the NPPF. He did not address the Ellesmere Port decision in his decision letter for Dunsfold. 

In light of the similarities between the two proposals, Lane J held that it was arguable that the Minister was obliged to take the Ellesmere Port decision into consideration when making his decision on Dunsfold, or to give reasons for departing from it. 

The challenge will now proceed to a full hearing on these two grounds. Permission was refused on several other grounds relating to the calculation of future harms and benefits from the proposed development.

The decision has been covered by ITV News, in the Guardian and on Drill or Drop.

Estelle Dehon KC , leading Alex Shattock of Landmark Chambers, represented Protect Dunsfold, instructed by Ricardo Gama at Leigh Day.