QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|EUROPA OIL AND GAS LIMITED||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||First Defendant|
|SURREY COUNTY COUNCIL||Second Defendant|
|LEATH HILL ACTION GROUP||Third Defendant|
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Mr Charles Banner (instructed by the Treasury Solicitors) appeared on behalf of the First Defendant
The Second Defendant did not appear and was not represented
Mr S Whale appeared on behalf of the Third Defendant
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"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 0.79ha, for a temporary period of up to 3 years, with restoration to forestry."
"The purpose of the proposed development is to explore for hydrocarbons in the Holmwood Prospect, which is within UK Onshore Licence PEDL143. In broad terms, the Prospect is located beneath Coldharbour village and the proposal would involve offset drilling. There would be four phases: site clearance and preparation; equipment assembly and drilling operations; testing and evaluation (if hydrocarbons are found) and site reinstatement. The appellants consider that these phases would take 6 weeks, 5 weeks, up to 4 days and 6 weeks respectively. Planning permission is sought for a temporary period of 3 years, with operations extending over an 18 week period. The principal elements of the development are set out more fully in the Statement of Common Ground at paragraph 2.2. The development would be for exploratory purposes only, to establish whether hydrocarbons are present. I approach this decision solely on that basis. If viable reserves were found, a separate planning application for a suitable location would be required."
1. He had wrongly concluded that the development was neither mineral extraction nor engineering operation; and so was not appropriate development in the Green Belt for the purposes of either the National Planning Policy Framework, NPPF, or the relevant development plan policy in the Surrey Minerals plan Core Strategy, MCS, 2011.
2. The inspector had misunderstood the significance of the temporary nature of the development, for the purpose of judging the presence of, and weight, to be given to any effect it had on the openness of the Green Belt or the purposes of the inclusion of the land in the Green Belt. He had also failed to give legally adequate reasons for his conclusions.
The decision letter
"(i) Whether the proposal amounts to inappropriate development in the Green Belt; ii the effect on Green Belt openness and on the purposes of the Green Belt."
I note the separation of the two in that way.
"Policy MC3 deals with mineral development in the Green Belt. Amongst other things it requires in respect of the development other than extraction and primary treatment, demonstration that very special circumstances exist to outweigh the harm by reason of inappropriateness and any other harm."
"15. As I set out above, this proposal is for exploratory drilling rather than for the production of hydrocarbons. It is consistent with paragraph 147 of the Framework to clearly distinguish between the three phases of development (exploration, appraisal and production) when considering planning issues arising from on-shore oil and gas development. 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. Paragraph 79 of the Framework explains that the essential characteristics of Green Belts are their openness and permanence. The purposes of Green Belts are set out in paragraph 80 of the Framework and include assisting in safeguarding the countryside from encroachment. The appeal site is within woodland, so that the site and the surrounding area are not of an open appearance. 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 heating, 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 the 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."
There are also some passages which, in the context of development in the AONB, also relate to visual impact. Mr Andrew Newcombe QC for the claimant emphasised, as he had done at the inquiry, that the period of actual development from start of work to completion of restoration works would only be 18 weeks.
"The Overall Balance
57. I have concluded that the development would amount to inappropriate development. Inappropriate development is, by definition, harmful to the Green Belt and there would also be harm to Green Belt openness and through encroachment into the countryside. Paragraph 88 of the Framework advises that substantial weight should be give to any harm to the Green Belt. I attach substantial weight to the harm through inappropriateness. In the particular circumstances of the case, where the development should be temporary and reversible, I consider that moderate weight should be given to the harm to Green Belt openness and by encroachment into the countryside. I have also found material harm to the AONB, with regard to visual impact and the effect on its character, including the quality of tranquility. I take into account the great weight given in the Framework to conserving landscape and scenic beauty in an AONB, which is also reflected in other relevant policies. However, only moderate weight should attach to it in the particular circumstances of this case. Other matters, including the effect of traffic movements on local residents and highway users, do not weigh materially against the development.
58. As I set out above, the exploration of energy and mineral resources is, in principle, consistent with national policies. In this case, the absence of another site from which the Holmwood prospect could be explored adds to the weight to be attached to the need for the development. On the other hand, that weight is tempered by the uncertainty of whether hydrocarbons would be discovered and the relatively small scale of the estimated resource. Nevertheless, I attach considerable weight to the need for the development in the context of the absence of any alternative site. I have taken into account the temporary and reversible nature of the development as mitigating factors in weighing the harm, rather than as distinct "other considerations" to weigh in the Green Belt balance in the appellants' favour. My overall conclusion is that there are not other considerations which would clearly outweigh the harm to the Green Belt and the other harm I have found. In the light of that conclusion, very special circumstances to justify the granting of planning permission do not exist and the development would conflict with MCS policy MC3. The development would not be in the public interest as referred to in policy MC2. Planning permission should not be granted."
"Inappropriate development is by definition harmful to the Green Belt and should not be approved except in very special circumstances."
"Very special circumstances would not exist unless the potential harm to the Green Belt, by reason of inappropriateness and any other harm is clearly outweighed by other considerations."
That language is clearly reflected in the inspector's decision.
"...as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it."
Paragraph 90, so far as material provides as follows:
"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."
"Identify and include policies for extraction of mineral resource of local and national importance in their area (...)"
"Give great weight to the benefits of the mineral extraction including to the economy."
but it also says that they should ensure "in granting planning permission for mineral development" that there are no unacceptable adverse impacts. He contrasted "erection" with "development". Paragraph 147 says:
"The Mineral planning authorities should also,
when planning for onshore oil and gas, development including unconventional hydrocarbons clearing distinguish between the three phrases of development (exploration, appraisal and production) and address constraints on production and processing within areas that are licenced for oil and gas exploration or production."
"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."
"3.45 Almost all workable mineral deposits in Surrey are within the MGB. However, PPG2 Green Belts states that mineral extraction need not be inappropriate in Green Belts as it is a temporary operation that can be carried out without compromising openness.
"3.46 Proposals for other forms of mineral development within the MGB will need to identify very special circumstances sufficient to outweigh any potential harm to the Green Belt or the reasons for keeping it open."
PPG2 is the clear progenitor of MC3. Paragraph 3.11 of PPG2 says as follows:
"Mining Operations and Other Development"
"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 include appropriate policies in their development plans. Mineral planning authorities should ensure that planning conditions for mineral working sites within Green Belts achieve suitable environmental standards and restoration.
Relevant advice is in MPG2 and MPG7. Paragraph 3.13 below is also relevant to mineral extraction."
"The plan applies to all types of mineral development and minerals in Surrey."
"1.5 'Mineral development' applies to any development primarily involving the extraction, processing, storage, transportation or manufacture of mineral. It also includes development such as rail aggregate depots and the provision of facilities for aggregate recycling. Policies on these latter facilities are included in the Surrey Waste Plan 2008 as well as this plan and proposals for new facilities will be made in the Aggregates Recycling DPD, a joint DPD.
1.6 'Mineral working' or 'mineral extraction' refer to the quarrying of minerals and ancillary development (such as processing plants, site offices and weighbridges)."
Oil and gas are described as primary minerals listed under the heading of "aggregates". Policy MC12 deals specifically with oil and gas development. Sub-paragraph 1 provides:
"Planning applications for drilling boreholes for the exploration appraisal or production of oil or gas will be permitted only where the mineral planning authority is satisfied that, in the context of the geological structure being investigated, the proposed site has been selected to minimise adverse impacts on the environment. The use of directional drilling to reduce potential environmental impacts should be assessed."
"Conventional oil and gas development."
"5.36 Conventional oil and gas development differs from other mineral development. It involves continuous periods of working with most disturbance at the exploration and appraisal stage, although these are usually of relatively short duration, and may, or may not, be followed by production. Oil and gas can be transported by pipeline rather than by road, and gathering stations need not be closely tied to the pint of extraction, considerations which give the opportunity to reduce environmental impacts associated with production.
5.37 Three separate phases of development are recognised, exploration, appraisal and production, each of which requires a separate planning permission. Applications for exploratory wells will be considered on their individual merits in accordance with all levels of policy guidance. Key considerations are locating sites to minimise intrusion, controlling vehicular activity and vehicle routeing, and controlling noise and light emissions from drilling rigs especially during night-time operations. Proposals will be expected to address all these issues."
The effect of the inspector's error on the interpretation of paragraph 60