Factual and Procedural Background
The Appellant, a residents' association opposing hydrocarbon exploration, appealed against the dismissal of their statutory review claim under section 288 of the Town and Country Planning Act 1990. The claim challenged a decision by an inspector appointed by the Secretary of State for Housing, Communities and Local Government, who allowed an appeal by an energy company against the refusal of planning permission by a county council. The permission related to hydrocarbon exploration and appraisal at a site within an Area of Outstanding Natural Beauty (AONB). The development was temporary, spanning 30 months in four phases, including removal of drilling fluids, engineering works, an extended well test (EWT), site security fencing, and restoration.
The county council refused permission on grounds that the development constituted major development within the AONB without exceptional circumstances or public interest, citing relevant local plan policies and the National Planning Policy Framework (NPPF). The energy company appealed to the Secretary of State under section 78 of the 1990 Act. The inspector allowed the appeal in February 2023. The residents' association challenged the inspector’s decision before the High Court, which dismissed the claim. The residents' association then obtained permission to appeal on four grounds.
Legal Issues Presented
- Whether the inspector erred by considering the benefits but not the harms of a future commercial production phase following exploration and appraisal.
- Whether the inspector misdirected himself by applying Policy M7a (non-hydraulic fracturing) rather than Policy M7b (hydraulic fracturing) of the joint minerals local plan.
- Whether the inspector erred in failing to consider alternative sites and proposals outside the AONB.
- Whether the inspector failed to consider the likely effects of the development on Ardingly Reservoir, specifically regarding water pollution risk.
Arguments of the Parties
Appellant's Arguments
- The inspector improperly considered benefits of future commercial production but ignored corresponding harms, thus erring in law.
- The inspector misapplied Policy M7a instead of Policy M7b, given the possibility of hydraulic fracturing in future phases.
- The inspector failed to properly assess alternatives outside the AONB, misinterpreting the "exceptional circumstances" test in the relevant policies.
- The inspector misunderstood facts about hydrological linkage to Ardingly Reservoir and failed to properly consider water pollution risks, making an error of fact and law.
- Fresh evidence was sought to challenge factual findings regarding the reservoir linkage.
Respondents' Arguments
- The inspector correctly confined his assessment to the exploration and appraisal phase without speculation on future production, consistent with national policy and precedent.
- Policy M7a applied appropriately because the proposal did not involve hydraulic fracturing; future possibilities do not alter the applicable policy.
- The inspector lawfully exercised planning judgment in assessing alternatives, focusing on the specific hydrocarbon resource and site, consistent with policy and supporting text.
- The inspector’s conclusion on water pollution risk was based on sound evidence, including expert assessments and regulatory controls, with no material error of fact or law.
- The fresh evidence was not admitted as it was not material and could have been obtained earlier.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 |
Principles of judicial review in planning appeals, including error of fact. |
Referred to establish the court's approach to public law challenges on planning decisions. |
| E v Secretary of State for the Home Department [2004] EWCA Civ 49 |
Test for established error of fact in judicial review. |
Applied to assess the alleged factual error regarding hydrological linkage to Ardingly Reservoir. |
| Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13 |
Objective interpretation of planning policy for consistency and predictability. |
Used to guide interpretation of local plan policies and national planning framework. |
| Europa Oil and Gas Ltd. v Secretary of State for Communities and Local Government [2014] EWCA Civ 825 |
Distinction between phases of hydrocarbon development: exploration, appraisal, and production. |
Confirmed that consideration of production impacts is not required at exploration stage. |
| Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] EWCA Civ 9 |
Limits on considering future production impacts at exploration stage in hydrocarbon planning. |
Followed for the proposition that exploration proposals must be considered on their own merits without speculation on production. |
| Ashchurch Rural Parish Council v Tewkesbury Borough Council [2023] EWCA Civ 101 |
Requirement to consider both benefits and adverse impacts of development proposals. |
Distinguished; facts materially different, not applicable to hydrocarbon exploration context. |
| Wealden District Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 39 |
Interpretation of "cost" and "scope" for alternatives under policies on major development in protected landscapes. |
Applied to support inspector’s flexible and fact-specific assessment of alternatives. |
| Simplex GE (Holdings) Ltd. v Secretary of State for the Environment [1989] 57 P. & C.R. 306 |
Legal test for mandatory material considerations in planning decisions. |
Argued by appellant but court found E v Secretary of State for the Home Department more applicable for error of fact test. |
| Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1996) 71 P. & C.R. 350 |
Planning system should not duplicate pollution control regimes. |
Supported the court’s view that planning decisions may rely on regulatory regimes for environmental protection. |
| R. (on the application of An Taisce) v Secretary of State for Energy and Climate Change [2014] EWCA Civ 1111 |
Planning authorities should defer to expert regulatory bodies on pollution control. |
Reinforced that planning decisions assume effective operation of environmental regulation. |
| Gladman Developments Ltd. v Secretary of State for Communities and Local Government [2019] EWCA Civ 1543 |
Planning system should not duplicate other regulatory controls. |
Reiterated principle that planning decisions rely on other regimes for environmental matters. |
| South Bucks District Council v Porter (No.2) [2004] UKHL 33 |
Contextual approach to the sufficiency of reasons in planning decisions. |
Supported the court’s acceptance of succinct reasons given the audience and context. |
Court's Reasoning and Analysis
The court began by emphasizing the importance of understanding the precise nature of the planning decision under review, particularly distinguishing between phases of hydrocarbon development: exploration and appraisal versus commercial production. The inspector’s role was to assess the proposal before him—limited to exploration and appraisal—and not to speculate on future production phases, which would be subject to separate planning applications and assessments.
The court found that the inspector correctly applied Policy M7a, which governs hydrocarbon development not involving hydraulic fracturing, as the proposal did not include such fracturing. The possibility of future hydraulic fracturing did not render Policy M7b applicable at this stage. The inspector’s imposition of a condition prohibiting hydraulic fracturing reinforced this conclusion.
Regarding alternatives outside the AONB, the court held that the inspector lawfully exercised planning judgment by focusing on alternatives relevant to the specific hydrocarbon resource and exploration purpose. This approach was consistent with the local plan policy and national policy, which allow for flexibility in assessing alternatives based on the nature of the development and the resource location.
On the issue of water pollution risk to Ardingly Reservoir, the court found no established error of fact or law. The inspector relied on expert hydrogeological assessments and the regulatory regime governing environmental protection, which included oversight by the Environment Agency and Health and Safety Executive. The inspector’s conclusion that the development posed no unacceptable risk was a lawful exercise of planning judgment. The indirect hydraulic connection via pumping was recognized but deemed unlikely and subject to regulation, thus not materially affecting the planning decision.
The court also refused admission of fresh evidence as it was not material and could have been obtained earlier.
Overall, the court affirmed the soundness of the inspector’s decision and the High Court judge’s conclusions, adhering closely to established legal principles and precedent concerning planning law, the interpretation of development plan policies, and the scope of judicial review.
Holding and Implications
The court DISMISSED the appeal.
The decision confirms that planning inspectors and courts must assess hydrocarbon exploration proposals on their own merits without speculative consideration of future production phases. It affirms the proper application of distinct local plan policies depending on whether hydraulic fracturing is involved in the proposed development. The ruling underscores the principle that planning decisions should not duplicate environmental regulatory controls but may rely on them. The court’s reasoning and holding do not establish new precedent but reinforce existing legal principles governing planning appeals and judicial review in the context of mineral and hydrocarbon development within protected landscapes.