Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors
[2023] EWHC 1854 (Admin)
Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities & Ors
13 October 2023
[2023] EWHC 2548 (Admin)
High Court
Someone wanted to explore for oil, not actually produce it. The judge said the person who decided to let them explore did a good job and followed all the rules, even if there was some disagreement on smaller details.
Key Facts
- •Statutory challenge under the Town and Country Planning Act 1990 to the grant of planning permission for hydrocarbon exploration and appraisal at Lower Stumble, Balcombe.
- •The development involves an Extended Well Test (EWT) for up to 12 months, including a continuous flare and generator.
- •The site is in the High Weald Area of Natural Beauty (AONB).
- •West Sussex County Council (WSCC) initially refused permission, but the Inspector overturned the refusal.
- •The Claimant raised six grounds of challenge, focusing on various aspects of the Inspector's decision-making process.
Legal Principles
In planning decisions, benefits and harms must be considered together; one cannot be assessed without the other.
Ashchurch Rural Parish Council v Tewkesbury BC [2023] EWCA Civ 101
Exploration for hydrocarbons should focus on the benefits and disbenefits of the exploration phase, not necessarily anticipating the production phase.
R (Preston New Road Action Group) v Secretary of State for Communities and Local Government [2018] Env LR 18
Planning authorities have broad discretion in applying policies, subject to challenge on grounds of irrationality or public law error.
SSCLG v Wealden DC [2018] 1 Env LR 5
In EIA Regulations, the 'project' must be considered as a whole, avoiding 'salami-slicing'. The identification of the 'project' is a fact-specific inquiry.
Ashchurch Rural Parish Council v Tewkesbury BC [2023] EWCA Civ 101, R(Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)
Screening opinions in EIA Regulations are intended to identify cases likely to have significant environmental effects. Challenges are limited to irrationality or public law error.
R. (Birchall Gardens LLP) v Hertfordshire CC [2017] Env. L.R. 17
A mistake of fact must be established and have played a material part in the decision to be grounds for appeal.
E v Secretary of State for Home Department [2004] QB 1044
Outcomes
Ground One dismissed.
The Inspector correctly focused on the benefits and disbenefits of the exploration phase, not pre-judging the production phase. The case is distinguishable from Ashchurch.
Ground Two dismissed.
The application did not involve hydraulic fracturing, so the correct policy (M7a) was applied.
Ground Three dismissed.
The Inspector rationally considered alternatives for exploration, not production, as the application was for exploration.
Ground Four dismissed.
The screening opinion lawfully considered the project as limited to exploration and assessment. GHG emissions were not deemed significant given the scale.
Ground Five dismissed.
The Inspector's consideration of the development's role in moving towards 'net-zero' was sufficient regarding climate change impacts.
Ground Six dismissed.
Any potential hydrological impact on Ardingly Reservoir was deemed unlikely and subject to regulatory control, making it immaterial to the decision.
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