ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Ouseley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE KITCHIN
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Andrew Newcombe QC and Mark Westmoreland Smith (instructed by Charles Russell LLP) for Europa Oil and Gas Limited
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Lord Justice Richards :
"Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
- mineral extraction;
- engineering operations …."
"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 0.79 ha, for a temporary period of up to 3 years, with restoration to forestry."
"15. … I have considered the appellants' contention that this exploratory development should be regarded as part of mineral extraction. However, in the light of paragraph 147 of the Framework, this does not seem to me to be the correct approach. In that context, I do not consider that this development falls within the specific term 'mineral extraction', which is the production phase and is cited in paragraph 90 of the Framework as a category of development which is not inappropriate subject to the effect on Green Belt openness and purposes. Nor does the development, when considered as a whole, fall into the category of 'engineering operations', which is also referred to in paragraph 90, although it includes elements of such operations. Moreover, the Framework does not exclude temporary development from amounting to inappropriate development.
16. Having regard to the above, I conclude that the development would amount to inappropriate development. Paragraph 87 of the Framework sets out that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. This requirement is also reflected in MCS policy MC3."
"17. … However, I consider Green Belt openness in terms of the absence of development. The proposal would require the creation of an extensive compound, with boundary fencing, the installation of a drilling rig of up to 35 metres in height, a flare pit and related buildings, plant, equipment and vehicle parking on the site. Taking this into account, together with the related HGV and other traffic movements, I consider that Green Belt openness would be materially diminished for the duration of the development and that there would be a conflict with Green Belt purposes in respect of encroachment into the countryside over that period."
In striking the overall balance, at paragraph 57, he said that he attached substantial weight to the harm through inappropriateness; that in the particular circumstances of the case, where the development would be temporary and reversible, moderate weight should be given to the harm to Green Belt openness and from encroachment into the countryside; and that, having regard to the temporary and limited extent of the harm to the Area of Outstanding Natural Beauty with regard to visual impact and effect on its character, only moderate weight should be attached to that harm.
Ground 1: the interpretation of paragraph 90 of the NPPF
"142. Minerals are essential to support sustainable economic growth and our quality of life. It is therefore important that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs. However, since minerals are a finite resource, and can only be worked where they are found, it is important to make best use of them to secure their long-term conservation.
143. In preparing Local Plans, local planning authorities should:
- identify and include policies for extraction of mineral resource of local and national importance in their area …
- so far as practicable, take account of the contribution that substitute or secondary and recycled materials and minerals waste would make to the supply of materials, before considering extraction of primary materials, whilst aiming to source minerals supplies indigenously;
- set out policies to encourage the prior extraction of minerals, where practicable and environmentally feasible, if it is necessary for non-mineral development to take place ….
144. When determining planning applications, local planning authorities should:
- give great weight to the benefits of the mineral extraction, including to the economy ….
147. Minerals planning authorities should also:
- when planning for on-shore oil and gas development, including unconventional hydrocarbons, clearly distinguish between the three phases of development (exploration, appraisal and production) and address constraints on production and processing within areas that are licensed for oil and gas exploration or production …."
"41. The inspector and Mr Whale's approach depends on the proposition that whilst extraction may be appropriate development in the Green Belt, the necessary prior work of exploration and appraisal never can be, and that actual extraction may involve no harm to the Green Belt while exploration and appraisal always will. The former will not require or may not require the demonstration of very special circumstances, the latter always will. That is a distinctly odd interpretation of NPPF. [By] paragraph 144 planning authorities are enjoined to give great weight to the benefits of what is referred to as mineral extraction. Again, that is referred to in general terms, covering all minerals. Yet, on the inspector's interpretation, no such weight at all would be given to works essential before any production took place. That interpretation would, on its face, be likely to undermine the scope for great weight to be given to the benefit of mineral extraction. What might be very valuable reserves if extracted, and the extraction of which would require no very special circumstances to be shown, could not be explored or appraised without very special circumstances being shown.
42. Mr Whale asked why a planning authority should give weight to trying to find something that is probably not there. But it is obvious why one would give great weight to trying to explore for a valuable resources although it might, in the end, never be found; and especially so [since], as was evidenced, it is always more likely than not that this mineral will not be found [on] exploration of a seismically surveyed prospect and where the resource is at the high end of the likelihood being found. There is obvious potential on Mr Whale's approach to undermine the aim of benefiting the economy through extracting the mineral. In general, his would be a policy that involves straining at the gnat only to swallow the elephant. If oil exploration may be more intrusive than oil production – the reverse of the usual position in mineral extraction – that does not mean that a general mineral policy such as paragraph 90 should be interpreted differently …."
"Policy MC3 - Spatial strategy – mineral development in the Green Belt
Mineral extraction in the Green Belt will only be permitted where the highest environmental standards of operation are maintained and the land restored to beneficial after-uses consistent with Green Belt objectives within agreed time limits.
Proposals in the Green Belt for mineral development other than extraction and primary treatment, will only be permitted where the applicant has demonstrated that very special circumstances exist to outweigh the harm by reason of its inappropriateness and any other harm."
Paragraph 3.45 of the supporting text, referring to PPG2 (to which I return below), states that mineral extraction need not be inappropriate development in the Green Belt as it is a temporary operation that can be carried out without compromising openness.
"47. Mineral development in the definition section of the MCS includes extraction and processing and other specifically identified forms of mineral development. It does not expressly refer to exploration and appraisal, yet one word or another used in the definition must be given broad enough scope for exploration to be included within it. Were it otherwise, exploration would fall outside the scope of the MCS altogether. No one has suggested that. The consequence, therefore, is that a word must be found within the definition section which encompasses exploration. The obvious word to encompass it is 'extraction'. It cannot be 'processing, storage, transportation or manufacture'. It is not within the same broad categories as rail depots and recycling. It is closer to what 1.6 envisages."
"3.11 Minerals can be worked only where they are found. Their extraction is a temporary activity. Mineral extraction need not be inappropriate development: it need not conflict with the purposes of including land in Green Belts, provided that high environmental standards are maintained and that the site is well restored. Mineral and local planning authorities should ensure that planning conditions for mineral working sites within Green Belts achieve suitable environmental standards and restoration …."
Whilst I see the force of Mr Whale's argument that the expressions used in that guidance echoed the statutory definitions and distinctions to which I have referred, it is unnecessary to reach a decision on the point. PPG2 was replaced by the NPPF, the terms of which are different, and it is within the context of the NPPF that the meaning of "mineral extraction" must be decided.
Ground 2: whether the inspector's error made no difference
Lord Justice Kitchin :
Lord Justice Moore-Bick :