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Europa Oil & Gas Ltd v Secretary of State for Communities and Local Government [2014] J.P.L. 21

DATE: 25 Jul 2013

This was a case concerning whether speculative exploration for hydrocarbons amounts to “mineral extraction” within para. 90 of the National Planning Policy Framework and is therefore not automatically deemed to be “inappropriate development” within the green belt.

The proposal in the present case sought temporary permission to explore the Holmwood Prospect in the Surrey Hills. It was located in the Green Belt and AONB. It was calculated that the chance of finding oil or gas was no more than 32%, although no alternatives for exploring the Holmwood Prospect outside the Green Belt and AONB Prospect had been identified. The Inspector had held that it did not amount to “mineral extraction” since its purpose was to search for and appraise any hydrocarbons, rather than to exploit them. As a consequence it was “inappropriate development”. The harm by way of inappropriateness, together with the additional harm to the Green Belt and AONB, was not clearly outweighed by the benefits of the scheme and therefore the necessary very special circumstances did not exist.

Shortly before the hearing, following the publication of DCLG Guidance Planning Practice Guidance for Onshore Oil and Gas (19 July 2013) and an accompanying ministerial statement about the need for accelerating shale gas development in the UK, the Secretary of State indicated that he no longer defended the Inspector’s conclusion that exploration fell outwith the definition of “mineral extraction” but instead agreed with the Claimant’s contrary interpretation. Leith Hill Action Group continued to defend this aspect of the Inspector’s decision.

Ouseley J. held that the term “mineral extraction” in NPPF para. 90 did indeed cover the exploration and appraisal stages of mineral development. He considered that, since the exploitation of a mineral resource was not possible unless that resource had first been identified and appraised, it would be illogical for those initial stages to be subject to a higher hurdle than the exploitation stage. He also held that, in considering whether the proviso in NPPF para. 90 that mineral extraction schemes must “preserve the openness of the Green Belt” and not “conflict with Green Belt purposes” in order to avoid being inappropriate, development should be assessed having regard to the fact that any such scheme would involve at least some significant temporary development. Accordingly, the mere presence of significant development in the Green Belt could not be taken to breach that proviso.

In the light of these conclusions, Ouseley J. held that the Inspector’s decision should be quashed since it could not safely be said that absent his misinterpretation of NPPF para. 90 his decision would inevitably have been the same.

Permission to appeal to the Court of Appeal was granted to LHAG both on the interpretation of NPPF para. 90 and on whether the decision would inevitably have been the same absent the Inspector’s error of interpretation.

The case is of considerable significance for the shale gas industry and planning applications relating to ‘fracking’ in the Green Belt.

Charles Banner appeared for the Secretary of State for Communities and Local Government.

Stephen Whale appeared for Leith Hill Action Group.