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

A national planning policy must be interpreted objectively from its language, read in its proper context and as part of the policy document as a whole. In Green Belt policy, “mineral extraction” includes the exploration, appraisal and production phases of onshore mineral development.

Exploratory mineral development is therefore capable of being appropriate development under paragraph 90 of the National Planning Policy Framework. Whether it preserves openness and avoids conflict with Green Belt purposes requires an assessment made from that premise. Relevant matters may include the development’s purpose, duration, reversibility, environmental standards and restoration arrangements. An assessment founded on the erroneous premise that exploration is necessarily inappropriate cannot establish that the same decision would inevitably have followed under the correct interpretation.

Europa Oil and Gas Ltd sought temporary planning permission for an exploratory hydrocarbon drillsite in the Metropolitan Green Belt and the Surrey Hills Area of Outstanding Natural Beauty. Surrey County Council refused permission. An inspector dismissed Europa’s statutory appeal after deciding that exploration was not “mineral extraction” within paragraph 90 of the National Planning Policy Framework and Policy MC3 of the Surrey Minerals Plan 2011.

On Europa’s challenge under section 288 of the Town and Country Planning Act 1990, Ouseley J held that mineral extraction included exploration and quashed the inspector’s decision: [2013] EWHC 2643 (Admin). Leith Hill Action Group appealed. The issues were whether exploratory drilling fell within “mineral extraction” and, if so, whether the inspector’s error was immaterial because the proposed development would inevitably have failed paragraph 90’s proviso concerning openness and Green Belt purposes.

1. Appeal dismissed. Richards LJ, with whom Kitchin and Moore-Bick LJJ agreed, held that the inspector had misinterpreted paragraph 90 of the National Planning Policy Framework. His error might have affected the outcome, so Ouseley J was entitled to quash the decision.

2. A planning policy is interpreted objectively according to its language, read in its proper context. The National Planning Policy Framework was a stand-alone document and paragraph 90 had to be construed in the context of its Green Belt policies and the document as a whole. Its later minerals provisions treated exploration, appraisal and production as phases of one overall process. In that context, “mineral extraction” included exploration as well as production.

3. The earlier statutory language and superseded national guidance did not require a narrower construction. Although those materials distinguished the winning and working of minerals from searches, tests or exploration, the National Planning Policy Framework replaced the earlier guidance and materially changed its language. Policy MC3 of the Surrey Minerals Plan 2011 likewise contained nothing requiring a different meaning. Its definition of mineral development could sensibly include exploration only through a broad understanding of extraction.

4. Exploratory mineral development is consequently capable in principle of being appropriate development in the Green Belt, provided that it preserves openness and does not conflict with Green Belt purposes. Applying that proviso is more complex than simply assessing the physical scale of structures after development has already been classified as inappropriate. The decision-maker may consider the development’s purpose, temporary duration, reversibility, operational environmental standards and restoration arrangements, together with the fact that mineral exploration can occur only where minerals may be found.

5. The inspector’s findings that the proposal would temporarily diminish openness and cause encroachment did not make his legal error immaterial. He made those findings on the premise that exploration necessarily fell outside paragraph 90’s exceptions and therefore never considered the proviso from the correct starting point. He might still have concluded that the proposal failed the proviso, but that result was not inevitable. The High Court’s order quashing the inspector’s decision therefore stood.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld Ouseley J’s conclusion that exploratory drilling constituted mineral extraction and that the inspector’s error might have affected the decision: [2014] EWCA Civ 825.
2. High Court, Administrative Court: Ouseley J allowed Europa’s challenge under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision: [2013] EWHC 2643 (Admin).
3. Planning inspector: The inspector dismissed Europa’s appeal against Surrey County Council’s refusal of planning permission, holding that exploratory drilling was not mineral extraction and amounted to inappropriate Green Belt development.