Tom Cosgrove KC and Ben Du Feu act for the Secretary of State in dismissing statutory challenge against hydrocarbon exploration

13 Oct 2023

Cornerstone Climate

In a judgment handed down on 13 October 2023, Lieven J has dismissed a statutory challenge to the grant of planning permission for exploration and appraisal works with an extended well test for hydrocarbons at an existing well site at Lower Stumble, Balcombe. The claim was brought on six grounds by Frack Free Balcombe Residents Association. Tom Cosgrove KC and Ben Du Feu are members of the Cornerstone Climate team and acted for the Secretary of State in resisting the claim.

Ground 1 concerned an allegation that the Inspector had unlawfully relied on the benefits of future hydrocarbon production at the site without accounting for the harms. The judge held that on a fair reading of the decision letter as a whole the Inspector understood that the application was for exploration not production and that he should focus on the benefits and disbenefits of that phase. In doing so the judge rejected the Claimant’s analogy with the recent case of Ashchurch Rural Parish Council v Tewkesbury BC [2023] EWCA Civ 101 and instead drew a comparison with R (Preston New Road Action Group) v Secretary of State for Communities and Local Government [2018] Env LR 18 where a similar point had been unsuccessfully pursued in the Court of Appeal.

Ground 2 alleged that the Inspector had misdirected himself as to the local plan policy he had considered the application against. It was said by the Claimant that because a hypothetical future production phase could involve hydraulic fracturing this application should be assessed against the policy concerning hydraulic fracturing. The judge rejected this argument. The application, despite the Claimant’s name, did not actually involve hydraulic fracturing and therefore it was correct to apply the policy which concerned proposals for exploration and appraisal of oil and gas not involving hydraulic fracturing.

Ground 3 concerned the consideration of alternatives to the proposal pursuant to AONB policy. The judge held that it was important to focus on what the application was actually for: to determine whether there were commercially viable hydrocarbons in the Lower Strumble layer, not whether there should be any production of hydrocarbons from the site. Applying the policy to the facts required consideration of alternatives to the exploration in issue. That is what the Inspector had done.

Ground 4 concerned two alleged failures to comply with the Environmental Assessment Regulations. First, it was said that there was a failure to consider the project as a whole. The judge rejected this argument again drawing an analogy with the PNRAG case. The exploration and appraisal application was a single, clearly defined project and did not include any subsequent hypothetical commercial production. Secondly, it was said that the screening opinion had failed to have regard to the development’s potential to release GHG emissions to air. The judge found that there was no need to expressly refer to GHG emissions in the screening opinion. The decision maker would obviously have known that the proposal would emit GHG emissions and could be taken to have had that in mind in reaching the overall assessment that the proposal was not likely to have significant effects.

Ground 5 was that the Inspector had failed to consider the impacts of climate change from the development. It was said that to do so the Inspector needed to have assessed and quantified the level of GHG emissions from the development and that he failed to do so. The judge rejected this argument. She held that whilst climate change is likely to be a material consideration in every planning decision there is no requirement that every planning decision has to expressly refer to or quantify the GHG emissions that will result. Instead, on the facts of this case, the Inspector’s consideration of the proposal’s compatibility with the transition to net-zero was sufficient.

Finally, ground 6 concerned an allegation of a mistake of fact in relation to a hydraulic connection between the application site and a reservoir. The judge held that even if there had been a mistake of fact, which was not necessarily apparent from the decision letter, any such mistake of fact had not been material to the decision.

A copy of the judgment can be found here.

Tom Cosgrove KC and Ben Du Feu acted for the Secretary of State in this matter.