18th May 2014

A residents’ group in Balcombe has written through its lawyers to tell West Sussex County Council why it believes planning permission for testing Cuadrilla’s exploratory oil well was unlawful. The council has 14 days to respond before the group applies for a judicial review of the decision.

The group, Frack Free Balcombe Residents Association, has employed solicitors Leigh Day to represent its arguments that the permission should be quashed. The application for testing the well’s flow rate, as well as for an enclosed flare, security fencing and site restoration, was approved on 29th April by the county council’s planning committee. Only one of the 13 members of the committee voted against.

The letter, addressed to West Sussex senior solicitor, Becky Moutrey, said it hoped the council would “realise that its decision to grant planning permission cannot stand” and urged it not to resist proceedings to quash the permission.

Judicial review is the only option open to people opposed to the planning permission. A High Court judge will assess whether the planning committee made its decision in accordance with the law. If the judicial review is successful, the original decision is declared invalid and struck down. The planning committee would then have to take the decision again.

Frack Free Balcombe Residents Association (FFBRA) began the Judicial Review process against Cuadrilla’s permission for the site at Lower Stumble earlier this month. It lodged a determination notice on 2nd May and has until 6th  June to apply for a judicial review.

In its letter to the council, FFBRA set out eight arguments which it intends to use to make its case that permission should be quashed. It asked the council to respond within 14 days.

FFBRA’s legal arguments

1. Advice from regulators

The committee acted unlawfully under new Minerals Planning Guidance by saying it had to assume that the Environment Agency (EA) and Health and Safety Executive (HSE) statements on air and water quality could be relied on. FFBRA had advised the committee that scrutiny by EA and HSE was not complete and they could not be relied on. “The committee unlawfully failed to evaluate those things”, the letter says.

2. EA permit

The committee was misdirected when it was told that the permit issued by the EA monitored and controlled emissions from the flare and fugitive emissions from the site. FFBRA had reminded the committee that the permit did not set a limit on emissions from the flare.

3. HSE assessment

The committee acted unlawfully by accepting advice that the HSE had considered the possible interaction with nearby wells, as well as geographical strata and the fluid within them. The letter says the basis for this advice is unclear, because the HSE did not have the necessary information, nor did it visit the site to acquire it. An earlier well, drilled by Conoco, has not been inspected since it was abandoned in 1987.

4. Council motion

The committee unlawfully failed to follow a resolution passed by the full council in October last year, which set out the necessary conditions for approving planning permission for oil and gas developments. The motion required: adequate arrangements to meet, monitor and enforce conditions; full consultation with local communities; and a community benefits scheme. A Balcombe resident told the committee that the village had not been consulted by Cuadrilla on the application, the arrangements were not adequate and there was no community benefit scheme.

5. Cuadrilla’s record on planning conditions

The committee was misdirected when it was advised that it could not take into account Cuadrilla’s record of compliance with planning conditions. Residents had pointed out to the committee that Cuadrilla had breached conditions on lorry movements and noise last summer when it drilled the well at Balcombe. The committee was told it had to assume the company would comply with the conditions on the new application.

6. Legal agreement

FFBRA asked the council to require Cuadrilla to sign a legal agreement to make it easier to enforce planning conditions. The committee was advised that an agreement would not achieve anything and was not reasonable. The letter said this advice was “plainly wrong”.

7. Public opinion

The committee was advised that the weight of public opinion against the application was not a relevant consideration. Nearly 900 people objected to the application and a petition in opposition contained 5,000 signatures. The advice to the committee, the letter said, was “simply wrong in law”.

8. Implications of public order and policing costs

The committee was also advised that it could not consider whether approving the application would lead to more protests and higher policing costs. The letter said these issues could be considered because section 70 of the Town and Country Planning Act 1990 required planning authorities to “have regard to local finance considerations”. This would include government support for policing, which has been promised by the Home Office for any future protests in West Sussex.

The letter also asks West Sussex County Council to clarify the description of “temporary” on the planning permission. “We are unclear as to what is meant by that given that it provides Cuadrilla with planning permission for all of the work it wants to undertake and is not in any sense ‘temporary’.”

FFBRA is seeking a judicial review under a Conditional Fee Arrangement. If it loses it will not be liable for its own legal costs. Under European law, if West Sussex County Council’s costs are awarded against FFBRA, they will be limited to £10,000.