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

The Court of Appeal dismissed the challenge to an inspector's decision allowing an appeal against the refusal of planning permission for a time-limited hydrocarbon exploration and appraisal operation within the High Weald AONB. The court held that the inspector lawfully treated the proposal as an exploration and appraisal project, distinct from production, and therefore properly considered the benefits and harms of the exploration phase without speculating about hypothetical future commercial production. The inspector correctly applied Policy M7a (hydrocarbon development not involving hydraulic fracturing), not Policy M7b, because the proposal did not involve hydraulic fracturing and a condition expressly prevented it. He lawfully assessed alternatives under Policy M13 by focusing on alternatives relevant to exploring the known Lower Stumble resource, and he reasonably concluded that the risk to Ardingly Reservoir was not unacceptable given the hydrogeological evidence, proposed mitigation, and the regulatory regime (Environment Agency and permitting) that would control pollution risks.

Background and parties: The appellant, Frack Free Balcombe Residents' Association, sought statutory review of an inspector's decision which allowed an appeal by Angus Energy Weald Basin No.3 Ltd. against West Sussex County Council's refusal of planning permission for "exploration and appraisal" works, including an extended well test, at the Lower Stumble Exploration Site in the High Weald AONB. The Secretary of State was the first respondent and the county council the third respondent. The High Court (Lieven J.) dismissed the claim ([2023] EWHC 2548 (Admin)) and the claimant appealed to the Court of Appeal.

Nature of the claim and relief sought: Judicial review under section 288 of the Town and Country Planning Act 1990 of the inspector's grant of planning permission on appeal under section 78 of the 1990 Act. The claim advanced multiple grounds alleging legal error by the inspector in (i) taking account of benefits of possible future production without assessing attendant harms; (ii) applying Policy M7a rather than M7b of the West Sussex Joint Minerals Local Plan; (iii) failing to consider alternatives outside the Area of Outstanding Natural Beauty; and (iv) failing adequately to consider hydrological links and effects on Ardingly Reservoir.

Issues before the Court of Appeal:

• Whether the inspector erred by taking into account the benefits, but not the harm, of a hypothetical future commercial production phase.
• Whether Policy M7b (for hydraulic fracturing) should have applied rather than Policy M7a.
• Whether the inspector failed properly to consider alternatives outside the AONB as required by Policy M13 and NPPF paragraph 177.
• Whether the inspector erred on the facts or law in relation to the risk to Ardingly Reservoir.

Reasoning and findings: The court emphasised the established planning distinction between exploration/appraisal and production and applied prior authorities (notably Preston New Road Action Group and Europa Oil and Gas) to hold that decision-makers should assess the phase before them rather than speculate about hypothetical later phases. The inspector had repeatedly and expressly confined his assessment to the exploratory scheme before him; he did not attempt to predict production yields or the effects of production. Policy M7a applied because the proposed development did not involve hydraulic fracturing and the permission contained a clear condition precluding fracking; decision-making should focus on the content of the application. On alternatives under Policy M13, the inspector lawfully confined consideration to alternatives relevant to accessing the same target reservoir; given the geology and prior investment, exploring the Lower Stumble resource could not realistically be done outside the AONB and constructing a new borehole would be uneconomic. On water risk, the inspector relied on the hydrogeological risk assessment, the absence of objection from the Environment Agency and the regulatory permitting regime; he lawfully concluded there was no unacceptable risk to Ardingly Reservoir. The Court of Appeal found no public law error in these approaches and affirmed Lieven J.'s dismissal of the claim.

Wider context: The court reiterated that planning decision-makers should not duplicate specialist regulatory regimes and should consider each planning application on its own merits, without speculative assumptions about later phases that would themselves require separate consent and assessment.

The appeal is dismissed. The Court of Appeal held that the inspector did not err in law: he lawfully assessed the proposal as a time-limited exploration and appraisal project, correctly applied Policy M7a (not M7b), reasonably assessed alternatives under Policy M13 by reference to the relevant hydrocarbon resource, and lawfully concluded that there was no unacceptable risk to Ardingly Reservoir given the evidence and the regulatory permitting regime. Lieven J.'s dismissal of the claimant's statutory review was therefore upheld.

Appeal to the Court of Appeal from the High Court of Justice, King's Bench Division, Planning Court (Lieven J.), which had dismissed the claimant's challenge to the inspector's decision (Lieven J. [2023] EWHC 2548 (Admin)). The Court of Appeal handed down judgment in Frack Free Balcombe Residents' Association v Secretary of State for Housing, Communities and Local Government & Ors [2025] EWCA Civ 495.