Planning permission – Green belt – Inappropriate development – Claimant applying for permission to develop site for use of exploratory drilling for oil and gas exploration – First defendant secretary of state dismissing appeal against refusal of permission – Claimant applying for judicial review — Whether inspector erring in conclusion that development automatically inappropriate as exploration did not constitute mineral extraction – Application granted
In 2008, the claimant company applied to the second defendant local planning authority for planning permission for a development involving the construction of an exploratory drillsite to include plant, buildings and equipment; the use of the drillsite for the drilling of one exploratory borehole and the subsequent short term testing for hydrocarbons; the erection of security fencing and the carrying out of associated works to an existing access and track all on 0.79ha, for a temporary period of up to three years, with restoration to forestry. The site of the proposed development was in the metropolitan green belt and in an area of outstanding natural beauty (AONB). A planning officer made a report to the planning and regulatory committee of the second defendant on 25 May 2011 recommended the grant of conditional planning permission subject to the provision of a legal agreement. Acting against that recommendation, the second defendant refused planning permission.
The claimant appealed against that decision and an inspector appointed by the first defendant secretary of state held a public inquiry. The third defendant action group objected to the development at the inquiry. The inspector identified the main issues before him as whether the development amounted to inappropriate development in a green belt area and issues of openness and the purposes of the green belt which, together with the resultant drawing of the overall balance were relevant to the proceedings. The inspector determined that the development was not a major development for the purposes of the National Planning Policy Framework (NPPF) having regard to its scale in the context of minerals development generally, its temporary nature and its reversibility. Accordingly the inspector recommended that the appeal be dismissed on the basis that the proposed development would amount to “inappropriate” development which was by definition, harmful to the green belt and could only be approved under special circumstances. The inspector concluded that the proposed development was neither “mineral extraction” nor “engineering operations” for the purpose of the NPPF in deciding whether the development was appropriate.
The claimant applied for an order under section 288 of the Town and Country Planning Act 1990 quashing the decision of the first defendant. It contended, amongst other things, that the inspector had erred in his conclusions regarding inappropriateness in deciding that exploration fell outwith the definition of “mineral extraction” in paragraph 90 of the NPPF. Following the publication of the Planning Practice Guidance for Onshore Oil and Gas on 19 July 2013 and an accompanying ministerial statement on the need to accelerate shale gas development in the UK, the first defendant indicated that he no longer wished to defend the inspector’s conclusion on exploration. However the third defendant did not accept that the inspector had erred but argued that, even if an error had been made, it could have had no effect on the outcome of the inquiry.
Held: The application was granted.
The term “mineral extraction” in NPPF paragraph 90 covered the exploration and appraisal stages of mineral development. Since the exploitation of a mineral resource was not possible unless that resource had first been identified and appraised, it would be illogical for those initial stages to be subject to a higher hurdle than the exploitation stage. In deciding whether the proviso in paragraph 90 that mineral extraction schemes had to “preserve the openness of the Green Belt” and not “conflict with green belt purposes” in order to avoid being inappropriate, development had to be assessed having regard to the fact that any such scheme would involve at least some significant temporary development. Accordingly, the mere presence of significant development in the green belt could not be taken to breach that proviso.
The conclusion that the phrase “mineral extraction” in the NPPF was not synonymous with and exclusively confined to “production”, but also covered the inevitable precursor steps of exploration and appraisal where they were necessary, was reinforced by the language of paragraph 147, which provided that mineral development planning had to distinguish between the three phrases of oil and gas development: namely exploration, appraisal, and production. Extraction was not the word used in place of oil production. The three phrases were treated as components of the one process they naturally made up which was the overall process of extraction. The need to distinguish them derived from the need to address constraints on production in licensed areas, not to increase constraints on necessary parts of the process. Accordingly, the inspector had erred in failing to conclude that the proposal was one for mineral extraction within paragraph 90 which was a material error and the outcome of his decision without that error might very well have been different. Therefore, the first defendant’s decision had to be quashed.
Andrew Newcombe QC and Mark Westmorland Smith (instructed by Charles Russell) appeared for the claimant; Charles Banner (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendant did not appear and was not represented; Stephen Whale (instructed by direct access) appeared for the third defendant
Eileen O’Grady, barrister
