High Court to hear statutory review over planning inspector approval of AONB oil project
The High Court is this week hearing a claim that argues a planning inspector's decision to allow an exploratory oil drilling project in an Area of Outstanding Natural Beauty failed to consider the harms of the future extraction of hydrocarbons on the environment.
Frack Free Balcombe Residents Association (FFBRA), acting through resident Sue Taylor, is in the High Court today (19 July) in an attempt to quash the planning permission on grounds that allege the decision was irrational, failed to comply with planning regulations and the council's local plan and failed to consider climate change.
West Sussex refused planning permission in March 2021, as the project would represent "major development" in the High Weald Area of Outstanding Natural Beauty (AONB), for which there "are no exceptional circumstances, and which is not in the public interest".
In refusing the application, the council also concluded that there were alternative sources of hydrocarbon supply, both indigenous and imported, to meet national needs.
It added: "[There] is scope for meeting the need in some other way, outside of nationally designated landscapes. It would therefore be contrary to policies set out in the West Sussex Joint Local Minerals Plan 2018 and the National Planning Policy Framework (NPPF)."
But the developer, Angus Energy Weald Basin No 3 Ltd., subsequently appealed to the Planning Inspectorate, leading to an inspector's decision in February 2023 to allow the appeal.
In their decision letter, the inspector stated that all adverse impacts of the development could be acceptably mitigated in planning terms but with the notable exception that there would be a moderate adverse impact on the landscape of the AONB, contrary to the Mid Sussex District Plan and the NPPF.
"Even such moderate harm to the AONB carries great weight in terms of the NPPF," they added.
"Against that is to be balanced the evident national need I have identified for continued hydrocarbon exploration and assessment in the interests of energy supply security pending ultimate transition net carbon-zero energy provision.
"In my overall judgement, the national need is the overriding consideration and furthermore amounts to the requisite exceptional justification for permitting this major development within the High Weald AONB."
FFBRA's statutory review claim is being brought against Angus Energy Weald Basin No 3, West Sussex County Council and the Housing and Communities Secretary.
FFBRA is represented by law firm Leigh Day, as well as barristers David Wolfe KC and Merrow Golden. It will be argued that the inspector, having taken into account the benefits, should have also taken into account the harm to the environment if hydrocarbons were discovered and extracted to be used as part of the national energy supply.
The claimant is advancing the following six grounds:
- Acted irrationally by only taking into account benefits, but not the harms of the future extraction of hydrocarbons.
- Unlawfully interpreted and/or applied policy M7 of the West Sussex Joint Local Minerals Plan 2018.
- Failed to consider alternatives to development in the Area of Outstanding Natural Beauty, as required under the exceptional circumstances test in national and local policy.
- Failed to comply with the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 with no consideration of whether the development was an integral part of a wider project and no consideration of the environmental effects of emissions.
- Failed to consider the development's impacts on climate change.
- Failed to assess (or take into account an assessment of) impact on watercourses.
Leigh Day environment team solicitor Rowan Smith said: "The important legal principle here, which our client's case seeks to establish, is whether the Government must assess the planning merits of a fossil fuel project in a balanced, and therefore lawful, way.
“If the Government is allowed by the Courts to take into account the benefits, whilst ignoring the environmental harms, then that will set a damaging precedent and represent a major setback for the climate, so our client will argue.”
Adam Carey
