The West Sussex village that saw a summer of anti-fracking protests 10 years ago has taken the government to court over oil testing.

Balcombe made national headlines in 2013 when oil exploration by Cuadrilla led to near daily demonstrations and multiple arrests.

Now the community group, Frack Free Balcombe Residents Association (FFBRA), is arguing that a recent government decision to allow well testing in the village was unlawful.

It asked the High Court in London today to quash the permission granted in February 2023 by the levelling up secretary, Michael Gove. He overturned the unanimous refusal of the test by West Sussex County Council.

This is the second time FFBRA has brought a legal challenge over the Balcombe oil well.

Cuadrilla still has a majority stake in the Balcombe site. But the operator is now Angus Energy.

Residents are concerned that Angus Energy’s one-year well test would detract from the High Weald Area of Outstanding Natural Beauty and be hazardous to local people and wildlife.

They said it would involve flaring of gases 24-hours a day, seven days a week, within 350m of homes.

They also objected to extra heavy traffic passing the village school to the oil site, as well as a risk of pollution to the River Ouse and Ardingly reservoir and any increases reliance on fossil fuels.

The judge in today’s case, Mrs Justice Lieven, was formerly a planning barrister, who represented Cuadrilla and other onshore oil and gas companies.

The court heard how she had represented Cuadrilla at the appeal court. She was also Cuadrilla’s barrister at public inquiries over two proposed fracking sites in Lancashire. She represented Third Energy in a challenge to its fracking plans at Kirby Misperton in North Yorkshire and she put the shale gas industry’s case at an examination of the county’s minerals plan.

Arguments

FFBRA, which raised £37,000 to bring the legal challenge, is fighting the well test on six legal grounds.

1. Benefits versus harm

FFBRA’s barrister Dr David Wolfe KC told the court the secretary of state had unlawfully relied on the benefits of oil extraction when making his decision, without also considering the potential harm.

He said the planning inspector, who recommended approval of the Balcombe well test, “specifically referred to future production as a benefit of onshore oil in the UK”.

Dr Wolfe said the inspector had concluded:

“In the circumstances, it would plainly be inappropriate to rely upon imported oil both from the point of view of security of supply and with regard to sustainability in its broader sense.”

Dr Wolfe told the court:

“We say that statement crossed the line in referring to the benefits of production without considering the concomitant harm.”

He said a judge previously ruled that no weight should be given to the benefits of production in a decision about exploration at Cuadrilla’s fracking site at Preston New Road.

Tom Cosgrove KC, for the secretary of state, said:

“The Inspector [in the Balcombe case] understood that the application was for exploration and assessment and quite properly attributed weight to the benefits of those phases. The Inspector did not take into account the benefits of future production of hydrocarbons and recognised that any future production phase would be the subject of a further and separate planning application for assessment on its individual merits.

“The inspector was careful to weigh the benefits of different phases of exploration and production. He clearly understood that exploration was a necessary precursor of production.”

2. Water contamination threat

The Balcombe site is in a drinking water protection area and safeguard zone.

FFBRA argued that the government and the inspector unlawfully failed to assess the impact of the well test on the Ardingly drinking water reservoir. They also failed to “give legally adequate reasons for rejecting the objectors’ case and proceeded without any evidence”, the group argued.

Angus Energy had previously said it had not considered the impact on the reservoir because there was no link between water in the reservoir and a stream near the Balcombe site.

Local people disputed this, saying the stream flowed into the river Ouse and the local water company sometimes pumped water from the Ouse into the reservoir.

Dr Wolfe told the court:

“contamination from the site can end up in the reservoir which provides drinking water for much of Sussex. The impact of the site on the Ardingly Reservoir should never have been ruled out of scope of Angus’s Hydrological Risk Assessment.

“But the inspector relied solely on developer’s allegation that the site was not hydraulically linked.

“That relied completely on the un-evidenced and unexplained statement of the Developer and further assumed (incorrectly) that that statement was supported by the findings of the HRA (when it was not).”

Mrs Justice Lieven asked Mr Cosgrove what evidence there was that the pumping operation was used very rarely.

Mr Cosgrove said there was none but the Environment Agency (EA), which he described as an important statutory consultee, had reviewed the hydrological risk assessment and had no objection.

Mrs Justice Lieven asked:

“How do I know the EA has done its job properly?”

Mr Cosgrove replied:

“The only evidence is the EA consultation response. The inspector is entitled to assume that an agency has done its job properly.”

He described this ground by FFBRA as an “attempt to re-argue the planning merits”. He said:

“The Inspector is not required to refer to every aspect of his reasoning, but to provide his reasons for deciding as he did in relation to the principal controversial issues raised through the evidence. His reasoning addressed the principal controversial issues.”

3. “No information on climate change”

FFBRA argued that the inspector and the government had no information on the impact of the well test on climate change and failed to take this into account in the decision.

Mr Cosgrove accepted that the inspector had no data on likely emissions but he defended the decision to approve:

“The Inspector had a clear understanding of the continuing role of hydrocarbon development as part of the transition to net zero and the benefits of onshore production (including climate change benefits) during that transition period.

“He recognised that the continued exploration and appraisal of onshore hydrocarbons is compatible with, and part of, the strategy for the transition to net-zero.”

4. To frack or not to frack?

Dr Wolfe said the inspector and secretary of state had made a flawed interpretation of a section of the West Sussex Joint Minerals Local Plan that dealt with oil and gas extraction.

The inspector had said the Balcombe well test should be considered under policy M7a because it did not involve fracking.

Dr Wolfe said the company had not ruled out fracking in the future. “As long as fracking is on the table, the inspector should have followed policy M7b”, he said.

“This application is not for fracking but the wider proposal might in the future involve fracking. The developer has not ruled out the possibility of fracking. We say M7b is the right sequence.”

Mr Cosgrove, for the government, said “the geology makes fracking unlikely at Balcombe”. He said conditions on the planning permission specified that fracking should not be used as part of the well test.

“Any future application for production would need to be considered against policy approach at the time.

“It is simply not known whether any future application would be made and whether it would propose fracking or not.”

5. Alternatives to the AONB

FFBRA said national and local policy required the inspector to consider whether there was an alternative to the Balcombe site that could meet the national need for onshore oil exploration from outside the AONB.

But, the group said, the inspector and the government had unlawfully failed to do an assessment of alternative sites.

The inspector said in his decision that the cost of constructing an alternative wellbore would “plainly be uneconomic, given the prospect of the prior investment of £5.2 million in the present facility”.

6. Complying with environmental regulations

West Sussex County Council ruled that Angus Energy’s application for the well test did not need to include an environmental impact assessment (EIA), a detailed review of environmental effects.

Dr Wolfe said the council had failed to comply with the EIA regulations.

It should have considered whether the well test was part of a wider project, he said. But it “failed to exercise any planning judgement” on this issue.

He said the council had also failed to consider the environmental effects of emissions. There were no estimates of greenhouse gas emissions from the flare that was expected to operate continuously for 12 months.

Jenny Wigley KC, for West Sussex County Council, described FFBRA’s EIA argument as an “attack on planning judgement” and said it was “misconceived” that officers should be given estimates of potential greenhouse gas emissions. She said:

“Officers were able to make a lawful planning judgement as to whether the Development would be likely to have a significant effect on the environment based on their knowledge of the scheme and their experience of and the conclusions reached in relation to other similar proposals.”

Mr Cosgrove said an estimate of greenhouse gas emissions was not a mandatory or material consideration. He said the council had enough information and relied on the expertise and experience of officers.

• Judgement in the case was reserved to a future date.

Reporting on this case was made possible by donations from DrillOrDrop readers