Frack Free Balcombe Residents Association, R (on the application of) v West Sussex County Council

In determining a planning application, the planning authority may take account of environmental effects while assuming that an effective specialist regulatory regime will operate, where the relevant matters fall within that regime’s expertise and jurisdiction. It need not duplicate pollution, health and safety or process controls. The authority must nevertheless consider whether those matters can adequately be addressed, including by consulting the relevant regulator.

Past breaches of planning conditions are material, particularly to necessity and enforceability, but they do not ordinarily justify refusing permission to an applicant where permission runs with the land unless they demonstrate an enforceability problem. The number of objections is not itself decisive; the planning issues raised must be considered. The prospect of unlawful protest against lawful development is an immaterial consideration.

Frack Free Balcombe Residents Association sought judicial review of planning permission granted on 2 May 2014 by West Sussex County Council, as minerals planning authority, to Cuadrilla Balcombe Limited. The permission authorised temporary flow testing and monitoring of an existing hydrocarbon borehole, an enclosed testing flare, security fencing and site restoration.

The claim challenged the planning committee’s treatment of matters regulated by the Environment Agency, the Health and Safety Executive and the Department of Energy and Climate Change; alleged that the committee had been misled about air-emissions monitoring and well integrity; challenged its treatment of earlier breaches, the number of objections and protest-related costs; and raised an issue under the crime and disorder legislation.

1. The claim was dismissed. The committee had sufficient information and was entitled to rely on the established relationship between planning control and other statutory regimes.
2. The existence and effects of pollution, environmental and safety risks remained material planning considerations. However, where those matters fell within the competence of another regulator, the committee could assume that the relevant regime would operate effectively, provided it was satisfied from the available material that the issues could be adequately addressed. This approach was supported by national policy and the authorities including Gateshead MBC v Secretary of State for the Environment, [1995] Env LR 37, Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government, [2012] EWCA Civ 379, R (An Taisce (The National Trust for Ireland) v The Secretary of State for Energy and Climate Change, [2014] EWCA Civ 1111, and Morge v Hampshire County Council, [2011] UKSC 2.
3. The committee was not misled about Public Health England’s representations or the Health and Safety Executive’s consideration of the nearby abandoned well. Future regulatory scrutiny could properly be taken into account.
4. Earlier breaches were relevant, but the committee had considered them and had strengthened conditions concerning noise and traffic. Planning permission runs with the land, so past breaches did not ordinarily justify refusal absent an enforceability concern.
5. The committee was entitled to consider the substance of objections rather than treat their number as determinative. Costs arising from protests, and anticipated disorder caused by opposition to lawful activity, were immaterial.