Residents pursue legal challenge to planning inspector decision to allow exploratory oil project

A Sussex residents' association has launched a High Court challenge over a planning inspector's decision to grant planning permission for an exploratory oil drilling project which was initially refused by West Sussex County Council.

Frack Free Balcombe Residents Association, acting through resident Sue Taylor, is hoping to quash the permission on account of its claim that the inspector did not take into account the project's harm to the environment.

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 are 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).

The developer, Angus Energy Weald Basin No 3 Ltd., subsequently appealed to the Planning Inspectorate in August 2021.

Last month (February 2023), a planning inspector allowed the appeal and granted planning permission to the developer, remarking that the national need for hydrocarbon exploration was the overriding factor in his decision.

The inspector concluded that there is no evident comparable accessible or cost-effective alternative to the appeal proposals and that the site could be restored to a high standard under the agreed planning conditions.

On top of this, the inspector found 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."

The residents' association, represented by solicitors at Leigh Day, argue that the inspector concluded there was "only a need for hydrocarbon exploration because that might result in the discovery of commercial reserves, to help supply the national need for domestic hydrocarbon". However, the group added that the inspector should have also considered the harm to the environment from the realisation of that energy supply.

The grounds of claim contend that the inspector:

• 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 water courses.

Leigh Day environment team solicitor Rowan Smith said: "Our client believes that there are serious flaws in the Government's reasoning for approving the oil tests. Most notably, they say that the supposed benefits of the commercial oil have been taken into account, but the climate change harms have not.

"It will be argued that this led to a deliberately unbalanced, and therefore unlawful, conclusion on the planning merits. The campaigners we represent have been doggedly opposed to fossil fuel development in the heart of the Sussex AONB for over a decade, and we will continue to represent them in their legal fight for environmental justice."    

Adam Carey