The High Court has ruled that impacts of mineral extraction are not a material consideration for an application for mineral exploration.
In Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities and others [2023] EWHC 2548 (Admin), the High Court rejected a statutory challenge against the secretary of state’s decision to grant permission for the development of a mineral exploration project (hydrocarbons) in the High Weald area of outstanding natural beauty.
The claimant raised six grounds of challenge, out of which the most relevant ones are 1 and 3.
Ground 1 provided that it was unlawful for the inspector to rely on the benefits without the harms of hydrocarbon extraction. According to the claimant, the inspector had referred not only to the benefits from exploration, but also to the benefits from extraction.
The High Court disagreed as it was clear that the evaluation was focused only on the exploration stage.
Despite this, the High Court also considered it “inevitable” to consider matters relating to what would happen if viable hydrocarbons were found in the exploration phase, as it would not make sense to grant permission for exploration if the local policy did not allow for future extraction.
The High Court clarified that: “The Inspector did not need to refer to the disbenefits of production when considering the benefits of exploration because they would be fully considered and weighed in the balance at the production phase, if that is reached. However, they are not relevant to the decision whether to approve exploration alone.”
Additionally, the High Court also considered that R (on the application of Ashchurch Rural Parish Church) v Tewkesbury Borough Council [2023] EWCA Civ 101; [2023] PLSCS 30 was not applicable, because in that case the bridge-to-nowhere had no benefit on its own unless the rest of project was built.
Meanwhile, in this case the exploration of hydrocarbons was an indispensable stage to determine the commercial viability of the future extraction of minerals.
Ground 3 provided that the decision was unlawful because no alternatives were considered for carrying out the exploration outside the AONB.
The High Court considered that the objective of the exploration was only to determine the commercial viability of a future extraction of hydrocarbons, not to determine whether extraction should be carried out.
Therefore, the evaluation of alternatives had to be restricted to “alternatives for the purpose or benefit of the exploration in issue, not alternatives to the production of hydrocarbons from the site”.
It made no sense of the policy to argue that exploration could not be carried out if there were alternatives for extraction somewhere else.
This case helps to clarify the limits of what should be considered by the planning authorities when reviewing an application for mineral exploration.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
