0
On 20 July 2023, after a hearing on 8 June, Mrs Justice Steyn dismissed two statutory challenges to the Secretary of State’s decision to grant planning permission to company UK Oil and Gas (UKOG) for exploratory gas drilling at Loxley in Surrey. The site in question lies in an Area of Great Landscape Value, adjacent to the Surrey Hills AONB.
The two grounds of challenge concerned the weighting exercise for development that is found to harm AONBs, and the need for the Secretary of State to have regard to another decision made by him in relation to a shale gas appraisal project at Ellesmere Port in Cheshire.
Ground 1
In dismissing Ground 1, Steyn J reiterated the importance of applying the principles set out in St Modwen and noted that:
“The assumption that national planning policy is familiar to the Secretary of State and his inspectors (principle 6), and the presumption that a specialist planning inspector will have understood it, expressed by Lord Carnwath in Hopkins Homes (paragraph 13 above), applies with particular force to the policy of giving great weight to conserving and enhancing landscape and scenic beauty in AONBs, which can be traced back to the first version of the Framework published in 2012 (and beyond), and which is within the basic toolbox of any decision-maker in this field.”
The Judge then turned to the evidence offered by the decision letter and inspector’s report and rejected the Claimants’ contentions that they showed “clear contrary indications” to rebut the assumption that the decision-maker had correctly applied the NPPF 176. In particular, she rejected the suggestion that the omission of any reference to the requirement that great weight should be attached to conserving and enhancing landscape and scenic beauty in the AONB itself amounted to a positive indication of failure to apply the policy. That contention was inconsistent with the clear position on the authorities that the policy phrase “great weight” did not need to be used (see Bayliss v Secretary of State [2014] EWCA Civ 347) at [54]-[56]. She also accepted the submission that in referring to the “high sensitivity” of the AONB in assessing the overall planning balance, the Inspector was indicating that he viewed the harm to the AONB as carrying greater weight than would otherwise have been the case given the “limited effects” which he had identified ([57]).
Ground 2
On Ground 2, the Judge concluded that the Ellesmere Port decision was not one which no reasonable decision-maker would have failed to take into account, in the circumstances, when making the challenged decision.
Although Ellesmere Port also concerned proposals for exploratory and appraisal projects for natural gas extraction which would give rise to broadly similar quantities of greenhouse gas emissions, it was different in the following ways:
(i) climate change was only a principal controversial issue at Ellesmere Port, not at Loxley where no party argued that the emissions from the proposal rendered it contrary to policy ([89]-[90])
(ii) the policy context for Ellesmere Port was different because it involved shale gas, while Loxley involved a conventional deposit ([91]-[93]) and
(iii) the different sites and locations meant that different local policies and local contexts pertained. In particular, Surrey CC had agreed that its own climate change strategy was not predicated on restricting hydrocarbon exploration.
The judgment can be found here.
David Elvin KC and Matthew Dale-Harris acted for UKOG, instructed by Grant Anderson of Hill Dickinson. They also represented UKOG at the planning inquiry.
Jenny Wigley KC acts for Waverley Borough Council, instructed by Andrew Swaffer of Sharpe Pritchard. She represented Surrey County Council at the planning inquiry.
Alex Shattock acts for Protect Dunsfold Ltd with support from the Good Law Project, led by Estelle Dehon KC of Cornerstone Barristers. They are instructed by Ricardo Gama and Madeeha Akhtar of Leigh Day.
The decision has been reported in the Guardian, ITV News, Planning Resource and Surrey Live. The hearing was previously reported on the BBC.
