Campaign group considers appeal after High Court rejects challenge to planning permission for oil drilling

A local campaign group is considering appealing the High Court's decision to dismiss its challenge of a Government decision to grant planning permission for an exploratory oil well near the Surrey Hills Area of Outstanding Natural Beauty (AONB).

In Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors [2023] EWHC 1854 (Admin), Mrs Justice Steyn DBE considered a claim brought by the campaign group Protect Dunsfold alongside another claim brought by Waverley Borough Council.

Planning permission for the project, which involves creating a borehole in Loxley, Surrey, on land adjacent to an AONB, was twice refused by Surrey County Council.

However, Planning Inspector Phil Barner later recommended approval of the plan, and the then-Housing Minister Stuart Andrew green-lit the planning application on behalf of Michael Gove. In his decision letter, the inspector said overall harm to the AONB would be moderate.

But at the High Court, the two claimants argued that the decision to approve the drilling was unlawful as the inspector and the Secretary of State failed to have regard to the requirement in the first sentence of paragraph 176 of the National Planning Policy Framework (NPPF), that: "Great weight should be given to conserving and enhancing landscape and scenic beauty in … Areas of Outstanding Natural Beauty."

This argument formed the first ground.

Protect Dunsfold brought a second ground independent of Waverley, which argued that the decision was unlawful because the Secretary of State failed to explain substantial inconsistencies with his decision regarding another oil project appeal, published on the same day as the challenged decision.

On the first ground, Protect Dunsfold and the council submitted that it was striking that there was no acknowledgement in the inspector's report of the Secretary of State's decision of the required weight to be given to the assessed harm to the AONB.

But Steyn J found that the Inspector "referred to the very paragraph of the Framework to which the claimants contend he failed to have regard". "In my judgment, the fact that he did so is a strong indication that he in fact had the whole of §176 of the Framework (which is short, consisting of only three sentences) in mind."

She added: "It is true that in his conclusions he only referred to the policy in the last sentence of §176 of the Framework, not to the policy in the first sentence of that paragraph. But I agree with the Secretary of State that it is unsurprising that he considered it appropriate to refer expressly to a policy that had recently been added to the Framework, while regarding it as unnecessary to address a policy of very long-standing in relation to which there was no dispute."

The claimants also argued that the contrast with how the Inspector and the Secretary of State addressed the weight to be given to the benefits of the proposal was "stark".

However, this was also rejected by the judge, who stated that the inspector addressed the weight that should be given to the benefits in accordance with §211 of the Framework. She pointed to part of the decision letter that saw the inspector take the view that "significant" rather than "great" weight should be accorded to the exploration and appraisal phase. The inspector also addressed the weight of the benefits as it was the "one point on which the Secretary of State disagreed with the Inspector", the judge said.

The claimant's additional contention that the omission of any reference to the requirement that great weight should be attached to conserving and enhancing landscape and scenic beauty in the AONB amounts to a positive indication of a failure to apply the policy is "inconsistent with the clear position on the authorities that the policy phrase 'great weight' did not need to be used'", the judge also concluded.

Further, Steyn J concluded that the harm to the AONB "from a temporary development such as this clearly can, in principle, attract moderate weight in the overall planning balance".

She dismissed the ground, finding that the inspector's reasoning did not give rise to a substantial doubt as to whether he went wrong in law.

Protect Dunsfold's additional ground, which argued that the decision was inconsistent with a similar decision made by the Secretary of State in relation to Ellesmere Port, was also dismissed.

The Ellesmere Port decision concerned an appeal against the decision of Cheshire West and Cheshire Council to refuse an application for planning permission for the exploratory and appraisal phase of natural gas extraction at an oil drilling site in Ellesmere Port. It was made on the same day as the Loxley decision.

The Secretary of State's refused to green light the application, finding that the short-term economic benefits of shale gas exploration in the Ellesmere case attracted limited weight. He also considered that the unmitigated proportion of the greenhouse gas emissions carries significant weight against the proposal, and the conflict with paragraph 152 of the Framework as a whole also carries moderate weight.

Protect Dunsfold submitted that the decision under challenge and the Ellesmere Port decision were irreconcilable in their approach to unmitigated CO2e emissions and to §152 of the Framework.

But in Steyn J's judgment, she found that the decisions were "not sufficiently similar to trigger application of the consistency principle, and it is clear that in the circumstances, the Ellesmere Port decision is not one which no reasonable decision-maker would have failed to take into account".

She dismissed the claim.

Following the decision, Director of Protect Dunsfold, Sarah Godwin, vowed to continue to work to change Government policies "and fight for recognition of the very real and imminent threat to our environment, businesses and everyday life related to the continued search for fossil fuels".

Protect Dunsfold was represented by Leigh Day Solicitors. Commenting on a potential appeal, Leigh Day solicitor Ricardo Gama said: "Our clients are disappointed that the court has dismissed their claim for judicial review. They feel that there is an important legal principle at stake, which is whether local authorities and the Secretary of State can ignore greenhouse gas emissions when weighing up the public benefits of an exploratory drilling proposal such as this, in a context where greenhouse gas emissions were a reason for refusing a very similar development at Ellesmere Port. Our clients are considering an appeal."

Adam Carey