Campaigners fail in High Court challenge to fracking permission

The High Court has rejected all six grounds argued by a local campaign group in a dispute over fracking in West Sussex.

Mrs Justice Lieven said in her judgment that Frack Free Balcombe Residents Association’s (FFBRA) challenges had gained permission from Lang J to be argued but were all incorrect.

FFBRA had brought the case against the Secretary of State for Levelling Up, Housing and Communities, Angus Energy Weald Basin No.3 and West Sussex County Council.

It was a statutory challenge under the Town and Country Planning Act 1990 to an inspector’s decision to grant planning permission for “exploration and appraisal comprising the removal of drilling fluids and subsequent engineering works with an extended well test for hydrocarbons along with site security fencing and site restoration”.

Angus Energy had applied for permission for exploration and appraisal operations to assess suitability for commercial hydrocarbon production on the site, which is in the High Weald area of outstanding natural beauty (AONB)()

West Sussex had refused permission on the basis that the “exceptional circumstances" test in national and local policy for development in an AONB was not met and Angus Energy successfully appealed.

FFBRA’s grounds of challenge were:

1. Unlawful to rely on the benefits without the harms of hydrocarbon extraction.
2. Flawed interpretation of policy M7 of the West Sussex Joint Minerals Local Plan.
3. Unlawful failure to consider alternatives to proposal outside the AONB.
4. Failure to comply with the EIA Regulations.
5. Failure to consider the impacts on climate change.
6. Unlawful failure to assess impact on water resources.

Dealing with the first ground, Lieven J said FFBRA argued the inspector took into account the potential benefits of hydrocarbon but not the disbenefits.

She said the claim relied on the Court of Appeal decision in Ashchurch Rural Parish Council v Tewkesbury BC which concerned permission being granted for a road bridge over a railway but with no connections to the wider road network.

Lieven J said: “The inspector did not need to refer to the disbenefits of production when considering the benefits of exploration because they would be fully considered and weighed in the balance at the production phase, if that is reached. However, they are not relevant to the decision whether to approve exploration alone.”

She said the second ground was “plainly wrong” as the application was not for hydraulic fracturing but only exploration. An officers' report had indicated that fracturing was unlikely "given the geology" and there was no basis for the officers' to doubt this position.

Lieven J said ground 3 failed because Angus Energy had applied to determine whether there were commercially viable hydrocarbons “not to determine whether there should be production of any hydrocarbons from the site.

“It makes no sense of the policy, in the context of hydrocarbon exploration, to say that there should be no permission if there are alternatives for production elsewhere,” the judge said.

"It is completely obvious that there will be alternative hydrocarbon production sites both in the UK (onshore and offshore) and in other countries. Such an exercise would be pointless at the exploration stage but is likely to be highly relevant if there is ever a production application.”

There were two limbs to ground 4 - that West Sussex and the Secretary of State failed to properly consider the project as a whole; and that there was no consideration of the emissions relevant to climate change.

Lieven J dismissed the first and said there was no error of law in the second as it was extremely unlikely that the greenhouse gas emissions would have met this threshold for ‘significant likely effects’.

She dismissed the “closely related” fifth ground as there was ”no requirement…that every planning decision has to expressly refer to or quantify the greenhouse gas emissions that will result”.

On Ground 6 the risk of polluting Ardingly Reservoir “was so slight as not to be a material matter upon which the inspector needed to give further reasons or consideration”, Lieven J said.

Mark Smulian