Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities & Ors

In assessing planning permission for hydrocarbon exploration, the decision-maker may consider the policy and economic benefits of discovering whether commercially viable hydrocarbons exist, because exploration and possible production are linked. The adverse effects of later production need not be assessed at the exploration stage; they fall to be considered if a production application is made.

For major mineral development in a protected landscape, alternatives must be assessed by reference to the purpose of the proposal under consideration. At the exploration stage, the relevant alternatives are those for carrying out the exploration, not alternative production sites.

An environmental-impact screening opinion concerns the project as properly identified on the facts. Climate-change effects must be considered, but the law does not require every planning decision to quantify greenhouse-gas emissions expressly.

The claimant brought a statutory challenge under the Town and Country Planning Act 1990 to an Inspector’s decision granting permission for exploration and appraisal operations, including an extended well test, at Lower Stumble in the High Weald Area of Outstanding Natural Beauty.

The claimant alleged six errors: reliance on benefits of eventual hydrocarbon production without considering its harms; application of the wrong minerals policy; failure to assess alternatives outside the AONB; non-compliance with the environmental-impact assessment regime; failure to consider climate-change effects; and failure to assess impacts on Ardingly Reservoir.

The central issues were whether the proposal had to be assessed as part of a possible future production project, and how the protected-landscape, environmental-assessment and water-resource policies applied to exploration alone.

1. Ground One dismissed. The Inspector understood that the application concerned exploration and appraisal. It was nevertheless necessary to consider the benefits of discovering whether commercially viable hydrocarbons existed, since those benefits justified exploration. The disbenefits of future production were matters for any later production application. Ashchurch Rural Parish Council was materially different because the bridge had no independent benefit or use without the wider road scheme. The reasoning in R (Preston New Road Action Group) supported the distinction between exploration and production.
2. Ground Two dismissed. Policy M7a applied because the application did not involve hydraulic fracturing. The local planning authority had to determine the application actually before it. Possible future production involving hydraulic fracturing did not require the exploration application to be assessed under M7b.
3. Ground Three dismissed. Under Policy M13, the alternatives inquiry had to be adapted rationally to the development proposed. For exploration of the Lower Stumble strata, the relevant question was whether the particular geological resource could be explored elsewhere, not whether hydrocarbons could be produced elsewhere. The Inspector’s approach fell within his planning judgment.
4. Ground Four dismissed. The screening opinion lawfully treated the exploration and monitoring operation as a single, clearly defined project which did not include future commercial production. The anti-salami-slicing principle did not require conceptually separate exploration and possible later production to be treated as one project. The small scale and temporary nature of the development supported the conclusion that there were no significant likely environmental effects. The local planning authority knew that flaring would produce greenhouse-gas emissions, and its failure to refer expressly to those emissions was not material.
5. Ground Five dismissed. There is no general requirement to quantify greenhouse-gas emissions or refer expressly to them in every planning decision. The Inspector’s consideration of the proposal in the context of net zero and the relevant AONB policy was adequate.
6. Ground Six dismissed. Any possible factual mistake concerning hydrological linkage with Ardingly Reservoir was immaterial. The possible route through the River Ouse and subsequent pumping was slight and subject to permitting and monitoring controls. The challenge was therefore dismissed in its entirety.