Campaigners lose Court of Appeal battle over permission for exploration for hydrocarbons in Area of Outstanding Natural Beauty

A planning inspector was right to take account of the benefits, but not the harm, of potential future production of hydrocarbons when allowing an appeal for permission for exploratory works, the Court of Appeal has found.

Sir Keith Lindblom, senior president of tribunals, said in his judgment that campaign group Frack Free Balcombe Residents' Association (FFB) had failed to convince him of any of its arguments.

FFB brought the case against the Secretary of State for Housing, Communities and Local Government, developer Angus Energy Weald Basin No.3 and West Sussex County Council.

The council had rejected Angus Energy’s application for exploratory works, against officers’ recommendations, in part because the site is in an Area of Outstanding Natural Beauty (AONB), but the inspector upheld Angus Energy’s appeal.

FFB objected that the inspector erred in taking into account the benefits - but not the harm - of future commercial production of hydrocarbons and misdirected himself by applying a policy that did not concern fracking rather than one that did.

It also said he erred in failing to consider alternative sites and proposals outside the AONB and the likely effects of the development on the nearby Ardingly Reservoir.

FFB argued that when Lieven J heard the case in the High Court she had misunderstood the inspector's decision letter, wrongly concluding that he did not take into account the benefits of the future commercial production of hydrocarbons and therefore did not need to take the harm into account.

Sir Keith explained: “As the inspector clearly understood, the benefits of the proposed development of exploration and appraisal on this site came not from the assumed benefits of a possible future development of commercial production, but from the opportunity to discover whether there existed here a commercially viable resource of hydrocarbons capable of contributing to energy security. Whether the benefits – and the harm – attributable to a development of commercial production would ever come about was, at this stage, a matter of speculation.

“They depended on the outcome of some future proposal, which might never be made. But the benefits of exploration and appraisal did not depend on a future proposal. They depended, as the inspector knew, on the proposal now before him.”

He said the development plan had distinct policies for whether or not hydrocarbon development involve fracking.

FFB submitted that both the inspector and Lieven J misunderstood which planning policy applied.

Sir Kieth said: “I do not see any force in that argument…the inspector was clearly right to apply [the policy not concerned with fracking].”

He explained: “The proposed development did not involve hydraulic fracturing. No application had been made for planning permission for such development. That the Planning Committee knew what it had to decide, and under which policy, is clear from the officers' report and from the decision notice.”

The idea that the policy concerning fracking applied was “untenable” because hydraulic fracturing remained only a possibility in the future,

There would be no precedent or presumption favouring approval of fracking simply because exploration had been allowed.

FFB said the inspector misinterpreted the ‘exceptional circumstances’ test for major development in the AONB and should have considered alternative sites elsewhere.

Sir Keith said: “I am unpersuaded by that argument…when one reads the decision letter fairly and as a whole it is clear that the inspector dealt properly with ‘alternatives’, lawfully applying the relevant policies to this proposal for hydrocarbon exploration, in this location. And his conclusion, as a matter of planning judgment, that the ‘exceptional circumstances’ test was met was lawful.”

Turning to the reservoir issue, Sir Keith said none of the association’s arguments were well founded.

“Like the judge, I am unable to accept that when the inspector said the site was ‘not hydrologically linked to the Ardingly Reservoir’ he made an established error of fact, because there could be an indirect hydraulic connection,” Sir Keith said.

He said there could be no hydrological link between the site and the reservoir unless one was created deliberately and the inspector's observation was scientifically good and with no public law error.

Lord Justice Singh and Lord Justice Holgate both agreed.

Mark Smulian