Frack Free Balcombe Residents' Association v Secretary of State for Housing, Communities and Local Government & Ors

Planning permission must be assessed by reference to the development actually proposed. The benefits of hydrocarbon exploration and appraisal may include establishing whether a commercially viable resource exists and contributing to energy security. The decision-maker need not speculate about the benefits or harm of later commercial production requiring separate permission.

The policy applicable to hydrocarbon development depends on the proposal before the decision-maker. Exploration and appraisal not involving hydraulic fracturing falls under Policy M7a, even if future production might involve fracking. For major development in a protected landscape, Policy M13 and NPPF paragraph 177 require an overall judgment on exceptional circumstances and the public interest, informed by specified considerations. Alternatives may be assessed flexibly. Separate pollution-control regimes may generally be assumed to operate effectively.

Frack Free Balcombe Residents’ Association challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing Angus Energy’s section 78 appeal against West Sussex County Council’s refusal of permission.

The proposal concerned temporary exploration and appraisal works, including an extended well test, at the Lower Stumble Exploration Site in the High Weald Area of Outstanding Natural Beauty. Lieven J dismissed the statutory review claim in [2023] EWHC 2548 (Admin). The appeal concerned four issues: whether future commercial production had to be considered; whether Policy M7a or M7b applied; whether alternatives outside the AONB had to be assessed more widely; and whether the effects on Ardingly Reservoir were properly considered.

The Court of Appeal unanimously dismissed the appeal. It also refused the application to admit fresh evidence.

1. Actual proposal and future production. The application was confined to exploration and appraisal, not commercial production. Those phases are distinct. Following Preston New Road Action Group [2018] Env. L.R. 18, the inspector was entitled to assess the proposal on its own merits without speculating about a later application for production. The benefit of exploration lay in establishing whether a commercially viable resource existed and might contribute to energy security. The supposed benefits or harm of future production were not material at this stage. Europa Oil and Gas [2014] EWCA Civ 825 did not require a different approach. Ashchurch Rural Parish Council [2023] EWCA Civ 101 was materially different.
2. Applicable policy. Policy M7a applied because the development did not involve hydraulic fracturing. Policy M7b applied to development involving hydraulic fracturing. The applicable policy was determined by the content of the application before the inspector, not by a possible future production proposal. Condition 5 prohibited high-pressure hydraulic fracturing, and any future proposal would require separate permission under section 73 of the Town and Country Planning Act 1990. There was no need for a section 106 obligation to address that possibility.
3. Protected landscape and alternatives. Policy M13 and NPPF paragraph 177 stated broad principles, not a rigid series of tests. The overarching question was whether exceptional circumstances and the public interest justified the development, informed by need, alternatives and environmental impacts. The scope of the alternatives assessment depended on the nature and purpose of the proposal. For exploration of the Lower Stumble resource, it was lawful to focus on whether that resource could be accessed elsewhere and on the cost of doing so. The inspector’s planning judgment was rational and adequately reasoned. Wealden District Council [2017] EWCA Civ 39 supported that flexible approach.
4. Pollution, reasons and error of fact. Planning authorities should not duplicate statutory pollution controls and may generally assume that separate regulatory regimes operate effectively. The inspector considered the evidence, mitigation, regulatory controls and the indirect route to Ardingly Reservoir, and lawfully concluded that there was no unacceptable risk. Even if the reservoir risk were a mandatory material consideration, it had been considered. His reasons were sufficiently clear when read fairly and as a whole, applying South Bucks District Council v Porter (No.2) [2004] UKHL 33. The legal test for an alleged public-law error of fact was that in E v Secretary of State for the Home Department [2004] EWCA Civ 49, not Simplex GE (Holdings) Ltd [2017] PTSR 1041. No established factual error occurred.
5. Fresh evidence. The additional evidence could have been obtained earlier and could not materially influence the outcome. Its admission was therefore refused under CPR 52.21(2)(b).

• Court of Appeal (Civil Division) dismissed the appeal and refused the fresh-evidence application on 16 April 2025: [2025] EWCA Civ 495.
• High Court of Justice, King’s Bench Division, Planning Court dismissed the statutory review claim concerning the inspector’s decision: [2023] EWHC 2548 (Admin).