A group of Balcombe residents has failed in its legal fight to quash the planning permission granted to Cuadrilla to test and carry out flaring at an exploratory oil well in the village.
A judge in the High Court dismissed the claim for a judicial review by Frack Free Balcombe Residents’ Association (FFBRA). He said the Association’s case was not supported by the facts or by long-accepted principles.
In a written judgement issued today, Mr Justice Gilbart said he had no doubt that Cuadrilla’s plans had caused “considerable concern” to FFBRA.
“I feel considerable sympathy for the Claimant association and its members, who have mounted what is no doubt an expensive claim on what FFBRA and its members no doubt considered and were advised were respectable grounds in law.”
But he said the association had failed to make a sustainable case on all the grounds in its claim. He awarded costs of £10,000 against FFBRA.
The judicial review, heard four weeks ago, centred on whether West Sussex County Council (WSCC) had acted lawfully in the way it dealt with the planning application.
FFBRA’s barrister, David Wolfe QC, had argued that the planning permission was invalid because officers had misdirected and misled the planning committee at its meeting in April this year.
Mr Wolfe said that the officers were wrong to say that councillors had to rely on the advice of the Environment Agency (EA), and Health and Safety Executive (HSE) and to assume that statutory organisations would do their job satisfactorily.
Mr Wolfe had also argued that the committee was wrongly advised that it should not take account of
- Past breaches of planning conditions by Cuadrilla
- The number of objections received
- The likely costs generated by protests about Cuadrilla’s activities (a pointed raised by Cllr Sue Mullins)
He further claimed that the planning committee was misled about the views of Public Health England (PHE) on air emissions monitoring and the HSE on the integrity of a neighbouring oil well.
James Maurici QC, for West Sussex County Council, had argued that council officers had followed national policy and well-established legal authority and had not misled the committee.
But in his ruling, Mr Justice Gilbart described parts of FFBRA’s case as “misconceived” and “without substance”. He said:
“This application was for a lawful activity, which (and this has never been challenged in these proceedings) was a development which national and development plan policy supported, and which would be the subject of statutory control as well as planning conditions”.
“The approach adopted by WSCC towards the relationship of planning control with other regulatory codes and regimes followed national policy guidance as repeatedly endorsed by the courts”, the judge said.
He added that legal arguments used by FFBRA did not address or reflect long-accepted principles. “The case that the Committee was misled was unsustainable on the facts”, he added.
Reaction from West Sussex County Council and Friends of the Earth
How the judge ruled in detail
The role of statutory organisations
The judge described FFBRA’s arguments on this issue as “misconceived” and “without merit”. He said they were:
“in truth not a challenge to the lawfulness of the decision. They are an attempt to dress up as a challenge in law what is actually a merits argument that the WSCC Committee should have accepted that it should not regard the matters as being capable of being dealt with by HSE and EA”
“The case for the Claimants has failed, both because the legal arguments neither addressed nor reflected long accepted principles, but also because the case that the Committee was misled was unsustainable on the facts.”
Past breaches of planning conditions
“I regard this ground argued by the Claimant as also quite without substance. No one doubts that the enforceability of a planning condition is a material matter, and evidence of past breaches must be relevant in that context. That evidence was put before the Committee.”
Number of objections
“I consider that Mr Wolfe’s point is entirely without substance in the context of this case. The subject matter of all the objections was recited with care in the officer’s report”.
Costs incurred if Cuadrilla’s operation was approved
“While I have no doubt that County Councillor Mullins meant well, the reality of her objection was that she asked WSCC to refuse to permit that which it would otherwise have permitted, on a basis that its granting permission would excite opposition leading to protests designed and intended to disrupt a perfectly lawful activity. In my judgment, had it taken County Councillor Mullins’ original argument into account, WSCC would have had regard to an immaterial consideration and would have acted unlawfully. … I therefore reject this ground, which to my mind has not the slightest merit”.
PHE guidance on emissions monitoring
“PHE has twice emphasised that it has no significant concerns about the proposal. Any question of the degree of monitoring is a matter to be taken up with the EA, which in the knowledge of the PHE representation, voiced no concern before the planning committee and has indeed already acted in the way in which PHE have sought. It follows that I consider that there is no merit whatever in Ground 2 as taken by Mr Wolfe”.
HSE guidance on well-integrity
“I reject Mr Wolfe’s submission that there was any misleading of the committee so far as the HSE was concerned. Further, it is entirely evident in my view that ample controls existed and that the officer and Committee took the view that they would be applied by the HSE to ensure well integrity. … The HSE had assessed the question in detail, albeit by means of a desk study.”
Click here for the full ruling