R (oao) Frack Free Balcombe Residents Association v West Sussex County Council  EWHC 4108
Applications for planning permission – especially those for large projects – often require the parallel consideration of different permissions and licences sometimes with long temporal gaps. This is especially true of hydraulic fracturing or “fracking” for which there is a bemusing array of statutory authorities, licenses and permissions including a petroleum licence and consents for drilling, flaring and venting and the assessment and monitoring of the risk of seismic activity from the Department for Energy and Climate Change; permits from the Environment Agency (“EA”) for discharges to ground waters and surface waters as well as emissions to air; licences from the Health and Safety Executive (“HSE”) which deals with the safety aspects of all phases of extraction, including the design and construction of well casings for boreholes and, of course, planning permission from the “Minerals Planning Authority” (“MPA”) (usually county councils and unitary authorities).
However, several related questions arise: to what extent does the MPA need to consider the environmental factors such as discharges and emissions as part of the planning permission and can they leave such issues to the regulatory authorities which oversee the appropriate regime of licensing? Furthermore, can it be assumed by planning committees that regulators will be able to deal with environmental matters through conditions in licences and thus enforce if breaches occur under, for instance, the Environmental Permitting regime?
R (on the application of Frack Free Balcombe Residents Association) v West Sussex County Council 
These issues were considered recently in R (on the application of Frack Free Balcombe Residents Association) v West Sussex County Council  EWHC 4108 (Admin). This was a judicial review of the planning permission granted by West Sussex County Council (“WSCC”), as the MPA, to Cuadrilla Balcombe Limited (“CBL”). WSCC had granted,
“temporary permission for exploration and appraisal comprising the flow testing and monitoring of the existing hydrocarbon lateral borehole along with site security fencing, the provision of an enclosed testing flare, and site restoration”
The earlier protests against the exploratory drilling by CBL had been covered by the media in 2013. Continuing their campaign, the judicial review was intended to see off the fresh application for temporary permission.
The claimant organisation argued, inter alia, that the Planning Committee was wrongly advised that it should leave matters such as pollution control, air emissions and well integrity to the EA, HSE and other statutory bodies.
The main thrust of the judgment, therefore, lay in determining the relationship between the planning control regime and other statutory regimes, and effect that this has on the determination of planning applications.
WSCC’s own guidance sets out the scope of their function as a MPA:
The County Council is the mineral planning authority (MPA – other than for the area of the south Downs National Park) and is responsible for determining planning applications for onshore hydrocarbon extraction. The County Council has to work within the planning system which governs the development and use of land in the public interest. It may not address any emissions, control processes, or health and safety issues that are matters to be addressed under other regulatory regimes.
Similarly, the National Planning Policy Framework (NPPF) provides guidance on the responsibilities of the MPA at paragraph 122, Chapter 11
…….. local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.
The policy for minerals planning and its relationship with regulation is found in the guidance, “Assessing environmental impacts from minerals extraction”:
“What is the relationship between planning and other regulatory regimes?
The planning and other regulatory regimes are separate but complementary. The planning system controls the development and use of land in the public interest and, as stated in paragraphs 120 and 122 of the National Planning Policy Framework, this includes ensuring that new development is appropriate for its location – taking account of the effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution.”
Justice Gilbart in his judgment summarised the relationship between planning and other regimes as follows:
Planning control is but one of the statutory regimes which can affect the carrying out of a development, or its use. . . They do not all operate in the same way. Thus, while a planning permission cannot be revoked or modified by the minerals or local planning authority (as the case may be) without giving rise to a liability to compensation (see s 97-100 TCPA 1990) (and such revocations or modifications are therefore extremely rare) a permit from the EA can be modified by the EA to reflect changes in circumstance or knowledge without a right to compensation – see Regulation 20 of the Environmental Permitting (England and Wales) Regulations 2010. (A planning permission may only be changed without there being an entitlement to compensation where the owner proposes the change, and then only so far as its conditions are concerned - see s 96A TCPA 1990 as amended).
Plainly, while the effect of an activity on the environment is a material consideration, so too is the existence of a statutory code or codes which address(es) the effect(s) being considered. Thus, the generation of airborne emissions or the potential for contamination of ground waters are matters falling squarely within the purview of the EA permit regime: similarly, well integrity falls within the purview of DECC and of the HSE, and so on. Some fall within the remit of more than one statutory body.
It is therefore sensible that where one has a statutory code to address some technical issue, one should not use another statutory regime as an alternative way of addressing the issue in question (paras 25-27).
Gateshead MBC v Sec of State for Environment 
The principle of this split between responsibilities is not a new one. It had been explored in Gateshead MBC v Sec of State for Environment  Env LR 37, 1 PLR 85. In that case, the local planning authority challenged the grant of planning permission for an incinerator, arguing that the Secretary of State had been wrong to conclude that the powers of the then regulator (Her Majesty's Inspectorate of Pollution) – the predecessor of the Environment Agency - were sufficient to deal with concerns over emissions to the environment. The challenge was unsuccessful.
Glidewell LJ in that case had said,
If it had become clear at the inquiry that some of the discharges were bound to be unacceptable so that a refusal by HMIP to grant an authorisation would be the only proper course, the Secretary of State following his own express policy should have refused planning permission. But that was not the situation. At the conclusion of the inquiry, there was no clear evidence about the quality of the air in the vicinity of the site, moreover, for the purposes of deciding what standards or recommendations as to emissions to apply.
So, if a planning authority or the secretary of state knows that discharges or emissions from a proposed development will be “unacceptable” to the extent that a licence is unlikely to be granted, and the policy requirements are not met, then the authority should refuse permission.
Regulator does not object
Gilbart also referred to the more recent case of Morge v Hampshire County Council  UKSC 2 where the Supreme Court heard an appeal concerning a judicial review of a local planning authority’s decision to grant planning permission for a busway development where campaigners had suggested that the development would have an impact on bats, protected under the European Council Habitats Directive 92/43/EEC. The court said that it would be wrong, for instance, to place the onus on the planning authority to regulate what were Natural England’s own regulatory obligations. If the relevant regulator - Natural England – were satisfied that a proposed development would be compliant with the directive, then the planning authority should presume that that is correct
In the present case, the Environment Agency raised no objection to the fracking and had granted an Environmental Permit which addressed the flaring of waste gas resulting from the proposed operations, considering that it could be done without risk to people. But the Claimant contended that the MPA had been wrong to assume that the EA and HSE would exercise effective control so as to deal with concerns over emissions to air, groundwater contamination and well integrity and that the council should make its own assessment and not simply assume that the other statutory regimes would deal with matters properly.
However, Gilbart in his judgment ruled that planning officer had correctly advised the planning committee that the matters could be dealt with by the EA and by the HSE and that the approach was “entirely in keeping with long standing authority, and also with long standing policy advice.”
Indeed, the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant’s members have about the effects on the environment. The Claimant and its members’ concerns are in truth not with the planning committee’s approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee (para 102)
And in conclusion,
“. . .[the council] was entitled to consider that it could leave matters within the purview of the EA, the HSE and other statutory bodies and their regimes for those bodies to address. It had ample material to justify such an approach (para 132).
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 (para 133).
The case applies principles which have evolved little since Gateshead. Planning decisions often take place in a context of further environmental regulation and it appears to be sufficient that a local planning authority/ minerals authority considers the environmental issues and then leaves the regulation of the particular environmental activity to the regulator – even where there are concerns. It is still a material consideration for the planning committee that there will be environmental effects, but so too is the existence of the licensing regime which would regulate them.
A successful challenge to a decision for environmental reasons would require at the very least evidence of a procedural error – for instance where the views of the statutory consultee or regulator had not been considered. Trying to challenge a decision by an LPA on the basis that it has left important environmental factors to the regulator becomes a “merits” challenge, requiring demonstration of irrationality on the part of the decision maker in order to succeed. In the absence of a failure to consider environmental issues by the LPA, the campaigners are left with the alternative route which would be a challenge to the licensing decision of the regulator itself.
In the context of fracking, one more avenue for challenge of planning decisions has been shown to be problematic. Add to that the proposals in the Infrastructure Bill to remove the right of action in trespass against companies drilling horizontally under private land, and the chances of finding ways to stop fracking may be growing event narrower.
Justin Neal, Irwin Mitchell
Reproduced with kind permission from Environmental Law Monthly where this article first appeared