Planning permission – Mineral extraction – Green belt – Respondent company seeking planning permission to develop site for exploratory drilling for oil and gas – Appellant action group opposing that development – Whether amounting to “mineral extraction” within para 90 of National Planning Policy Framework such that not automatically inappropriate development in green belt – Appeal dismissed
In 2008, the respondent company applied for planning permission for exploratory drilling for oil and gas on a site in the metropolitan green belt near Leith Hill, Surrey. The proposed development was to include the construction of an exploratory drill site, with plant, buildings and equipment; the drilling of an exploratory borehole and subsequent short-term testing for hydrocarbons; the erection of security fencing; and the carrying out of associated works to an existing access and track for a temporary period of up to three years, with restoration to forestry. The appellant action group was opposed to that development.
Planning permission was refused both by the local planning authority and by a planning inspector on appeal. The inspector rejected the found that the proposals would amount to inappropriate development in the green belt for which no very special justifying circumstances had been demonstrated. He rejected the respondent’s contention that the development would qualify as “mineral extraction”, which, under para 90 of the National Planning Policy Framework (NPPF) activities, was not automatically inappropriate development.
The respondent succeeded in a claim under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. The judge held that “mineral extraction” in para 90 of the NPPF, and also in the relevant policy MC3 of the minerals core strategy for Surrey, included exploration such that the proposed development was for mineral extraction. He found that the inspector might have reached a different decision had he not fallen into error on that point and that his decision should be quashed accordingly: see [2013] EWHC 2643 (Admin); [2013] PLSCS 212. The appellant appealed.
Held: The appeal was dismissed.
On-shore oil and gas development had three phases, namely exploration, appraisal and production. Construing the NPPF as a stand-alone document according to its own terms, the phrase “mineral extraction” covered all three stages and was not intended to refer only to the production stage. The NPPF stressed the importance of minerals as a finite resource of which the best use should be made to ensure a sufficient supply to provide the infrastructure, buildings, energy and goods that the country needed: see para 142. The realisation of the economic and other benefits of mineral extraction depended on establishing by exploration and appraisal suitable locations for production. Moreover, para 143 pf the NNPF required local authorities, in preparing local plans, to identify and include policies for extraction and, given the importance of mineral resources, it would be surprising if that instruction did not extend to exploration as well as production. Looking at the specific context of the green belt policies in the NPPF and the wider context of the NPPF as a whole, “mineral extraction” should be interpreted broadly as encompassing all three stages.
As to the Surrey minerals core strategy, policy MC3 contained nothing that required “mineral extraction” to be given a different interpretation from that in the NPPF.
That conclusion was consistent with the government’s Planning Practice Guidance for Onshore Oil and Gas published in July 2013 and more recent guidance containing the same language, although those documents post-dated the NPPF and had no bearing on its construction.
When considering the effect of the proposed development on green belt openness and purposes, the inspector had proceeded on the incorrect premise that exploration for hydrocarbons was necessarily inappropriate development. Had he not made that mistake, he would have proceeded on the very different premise that exploration for hydrocarbons on a sufficient scale to require planning permission was nevertheless capable in principle of being appropriate development. Had he considered the matter on the correct premise, it was not certain that he would have concluded that the development was still inappropriate as failing to meet the proviso in para 90 of the NPPF that developments “preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt”. Accordingly, his decision might have been different but for his error and his decision had properly been quashed.
Stephen Whale (instructed by direct access) appeared for the appellant; Andrew Newcombe QC and Mark Westmoreland Smith (instructed by Charles Russell LLP) appeared for the respondent.
Sally Dobson, barrister
