Town and country planning – Planning permission – Material considerations – Claimant seeking judicial review of decision by defendant local planning authority to grant temporary planning permission for exploration and monitoring of existing bore hole – Whether defendants being wrongly advised about material considerations – Application dismissed
A company (C) applied for temporary permission for exploration and appraisal comprising the flow testing and monitoring of the existing hydrocarbon lateral borehole along with site security fencing, the provision of an enclosed testing flare, and site restoration at the Lower Stumble Hydrocarbon Exploration Site, London Road, Balcombe, West Sussex. The claimant residents association was opposed to the application. The proposed development required a number of statutory authorisations in addition to the grant of minerals planning permission, including from the Environment Agency (EA) and the Health and Safety Executive (HSE).
The claimant argued that the defendants’ planning committee had: (i) been wrongly advised that it should leave matters such as pollution control, air emissions and well integrity to the EA, the HSE and other statutory bodies; (ii) been misled with regard to the views of Public Health England (PHE) on air emissions monitoring, and of the HSE on well integrity; (iii) been wrongly advised to treat as immaterial evidence of past breaches of planning permission by C; (iv) been wrongly advised that the number of objections received, as opposed to their content, had been immaterial; and (v) been wrongly advised that the issue of the costs of dealing with protests at the activities of C had been immaterial.
Held: The application was dismissed.
(1) The defendants were entitled to assume that environmental controls would be properly applied. There was ample authority to the effect that the defendants might, in the exercise of their discretion, consider that matters of regulatory control could be left to the statutory regulatory authorities to consider. There had been ample material before the defendants’ planning committee that all matters of concern could be and would be addressed, as set out in the planning officer’s careful report. The existence of statutory regimes applied by the HSE, the EA and the Department of Energy and Climate Change showed that there were other mechanisms for dealing with the concerns which the claimant had about the effects on the environment. The claimant’s concerns were not with the planning committee’s approach of relying on other statutory regimes but with the statutory bodies whose assessments and application of standards they disagreed with. That did not provide a ground of legal challenge to the defendants’ decision: Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85, Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government [2012] EWCA Civ 379; [2012] PLSCS 77 and R (on the application of An Taisce) v Secretary of State for Climate Change and Energy [2013] EWHC 4161 (Admin) considered.
(2) The argument that the planning committee had been misled as to the PHE’s views was without substance. At all times, the EA had agreed with the PHE that there should be air quality monitoring. Moreover, the argument that the committee had been misled so far as the HSE was concerned was rejected. It was evident that ample controls existed and the committee had taken the view that they would be applied by the HSE to ensure well integrity: Morge v Hampshire County Council [2011] UKSC 2 and R (on the application of An Taisce) v Secretary of State for Climate Change and Energy [2014] EWCA Civ 1111; [2014] PLSCS 232 considered.
(3) The defendants had carefully addressed how noise monitoring and traffic routing were to be achieved and enforced. They had considered all the evidence put before them of past breaches. It followed that it had addressed all matters material to the issue of C’s past breaches of planning permission: Great Portland Estates plc v Westminster City Council [1985] AC 661 considered.
(4) In the context of the present case, the planning committee had been well aware of the fact of the substantial opposition and had been directed to the scale of the opposition to the planning application, including the number of objections, but also advised to look at the issues raised rather than the numbers raising them. There was nothing wrong with that advice in the present context: R (on the application of Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847 (Admin) considered.
(5) There was no doubt that C’s proposal had caused concern to the claimant but the court’s task was to consider whether the defendants had acted lawfully in the way in which they dealt with the planning application. It was for the defendants, not the court, to determine the merits. They had done so after a very full discussion and a thorough exploration of all the issues raised. The application had been for a lawful activity which was a development which national and development plan policy supported and which would be the subject of statutory control as well as planning conditions. Had the committee taken into account the argument that the grant of permission would excite opposition, leading to protests designed and intended to disrupt perfectly lawful activity, it would have had regard to an immaterial consideration and would have acted unlawfully: R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] QB 458 applied.
David Wolfe QC (instructed by Leigh Day) appeared for the claimant; James Maurici QC (instructed by West Sussex County Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Frack Free Balcombe v West Sussex
