In Ground One, the Appellant argued that the Inspector had erred in taking into account the benefits, but not the harm, of a future development of “commercial production” of hydrocarbons. The Court of Appeal rejected the Appellant’s argument and said that it was unsupported by the two most relevant Court of Appeal decisions in Europa Oil and Gas Ltd. v Secretary of State for Communities and Local Government [2014] PTSR 1471 and Preston New Road Action Group [2018] Env. L.R. 18. There was no doubt that the development proposed was solely for exploration and appraisal and not for commercial production. That distinction is recognised in the PPG guidance on minerals, the relevant development plan policies and national policy. There was no reason, therefore, not to follow Preston New Road. The Inspector here did not err in taking into account the possible effects and/or merits of some future scheme for commercial production. The benefits which he took into account were those arising from the opportunity to discover whether there existed here a commercially viable resource of hydrocarbons capable of contributing to energy security (see paragraph 53 of the judgment).

In Ground Two, the Appellant argued that the Inspector had misdirected himself by applying Policy M7a (hydrocarbon development not involving hydraulic fracturing) of the joint minerals local plan, rather than Policy M7b (hydrocarbon development involving hydraulic fracturing) because hydraulic fracturing had not been “ruled out” for the future production phase. The Court of Appeal held that the Inspector was correct to apply Policy M7a and not M7b as the former policy applies explicitly to applications for exploration and appraisal where hydraulic fracturing is not proposed whereas the latter policy applies where it is proposed. It was clear that the scheme before the Inspector did not involve hydraulic fracturing and the proposal had, therefore, to be assessed under Policy M7a. The Court of Appeal also rejected the suggestion that a grant of planning permission for exploration and appraisal was a “foot in the door” for the grant of planning permission for production as a separate planning application would be required raising different considerations. It described this suggestion as “a false concept”.

In Ground Three, the Appellant argued that the Inspector had erred in failing to consider alternative sites outside the AONB. It was argued that Inspector misinterpreted the “exceptional circumstances” test for “major development” in the AONB in both the joint minerals local plan NPPF and that he ought to have considered alternatives outside the AONB. The Court of Appeal held that the resource which the proposal was intended to explore and appraise was the Lower Stumble hydrocarbon resource and that the Inspector was entitled to conclude that it would unrealistic to contemplate the development taking place outside the AONB or the need for the mineral being met in some other way.  To have attempted an assessment of alternatives at large, beyond that geological limit, would have been inconsistent with that purpose (see paragraph 74). The Inspector had a discretion to adapt the assessment of alternatives to the type and nature of the development proposed, its location, and the relevant need.

In Ground Four, the Appellant argued that the Inspector had failed to consider the likely effects of the development on the nearby Ardingly Reservoir. It was suggested that water pollution would affect the reservoir. Those arguments were characterised in a number of ways, including failure to take into account an obligatory material consideration and error of fact. The Court of Appeal held that none of those arguments was well-founded. The Inspector had concluded that the development did not pose any unacceptable risk of water pollution (and indeed the Environment Agency had not objected). The Court held that this was unsurprising in light of the mitigation measures proposed and the regulatory regime in place (applying the well known principle in Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1996) 71 P. & C.R. 350). The connection was an indirect hydraulic connection and as there was no material risk of pollution from the site entering a nearby stream, and from there entering the River Ouse from which it might be pumped into the reservoir, the possibility of harmful effects on the reservoir could properly be disregarded. The Inspector had also made no error of fact in concluding that there was no direct hydrological link to the reservoir.

A copy of the judgment is available here.

Hereward Phillpot KC and Mark O’Brien O’Reilly, instructed by Fieldfisher, acted on behalf of the successful Second Respondent, Angus Energy Weald Basis No.3 Limited.