Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government & Ors

For Green Belt planning purposes, “mineral extraction” is not confined to the production phase. It may include necessary exploration and appraisal where those activities form part of the overall extraction process. Such development is potentially appropriate under paragraph 90 of the National Planning Policy Framework, subject to preserving openness and avoiding conflict with Green Belt purposes.

Temporary duration, reversibility, environmental standards and restoration are relevant to whether mineral development is appropriate. A planning inspector must assess those matters in the correct policy context. An error which prevents that assessment is material unless the court is satisfied that it could have made no difference to the outcome.

Europa Oil and Gas Limited challenged the Secretary of State’s decision, following a planning appeal, to refuse permission for a temporary exploratory hydrocarbon drilling site in the Green Belt and an Area of Outstanding Natural Beauty.

The inspector concluded that the proposal was inappropriate development because it was neither mineral extraction nor an engineering operation. He then found that the harm to the Green Belt and the AONB was not outweighed by the need for the development or the absence of an alternative exploration site.

The central issues were whether exploration constituted mineral extraction under the relevant planning policies, whether the proposal was an engineering operation, and whether the inspector’s approach to temporary development and Green Belt harm rendered his decision unlawful.

1. The claim was allowed and the inspector’s decision was quashed. The court rejected the submission that the inspector’s error could have made no difference to the outcome.
2. “Mineral extraction” in paragraph 90 of the National Planning Policy Framework is not synonymous with, or limited to, production. It includes necessary precursor activities of exploration and appraisal where they form part of the overall process of extracting minerals. Paragraph 147, which distinguishes exploration, appraisal and production, supports that construction.
3. The proposal therefore fell within “mineral extraction” in paragraph 90 and within the first limb of policy MC3 of the Surrey Minerals Plan Core Strategy. It was consequently potentially appropriate development, subject to the relevant proviso concerning preservation of Green Belt openness and conflict with Green Belt purposes.
4. The inspector was entitled to conclude, as a matter of fact and degree, that the proposal was not an engineering operation. The statutory concept of development in section 55 of the Town and Country Planning Act 1990 permits overlap between building, engineering, mining and other operations.
5. Temporary development may nevertheless be inappropriate, but its duration and reversibility can be relevant to appropriateness, openness and Green Belt purposes. Under MC3, the temporary nature of the activity, environmental standards during operation and restoration to beneficial after-use required specific consideration.
6. The inspector’s reasoning proceeded on the erroneous premise that exploration could not be appropriate development. He therefore failed to undertake the closer policy analysis required by paragraph 90 and MC3. The court also identified, without deciding, potential issues about whether substantial weight given to harm from inappropriateness could duplicate weight given to the specific harm which made the development inappropriate.
7. The matter was left to be dealt with following the quashing order. Permission to appeal was granted on both grounds, with the time for filing the appellant’s notice specified as 42 days or 21 days from receipt of the approved transcript, whichever was later.

The claimant appealed to a planning inspector against Surrey County Council’s refusal of planning permission. The inspector dismissed the appeal on 26 September 2012. The claimant then brought a statutory challenge under section 228 of the Town and Country Planning Act 1990. The Administrative Court quashed the inspector’s decision.