The High Court heard that the government go-ahead for gas drilling in the village of Dunsfold breached planning rules. 

Little old Waverley, The Dunfold Village Protest Group, backed by The Good Law Project and Drill or Drop, took on silks from some of the top legal chambers in the country to defend our borough.

Surrey County Council twice refused permission for the Dunsfold scheme, but this was overturned in June 2022 by the housing minister, Stuart Andrew, after a public inquiry.

Same gas, same emissions, same day, different result

Estelle Dehon KC, for Protect Dunsfold, said the decision to grant planning permission was …

inconsistent with one announced on the same day in a similar case and… 

She called for the Dunsfold decision to be quashed.

 The minister refused permission for well testing at Ellesmere Port in Cheshire because the unmitigated greenhouse gas emissions on climate change conflicted with national planning policy.

Ms Dehon said the Dunsfold and Ellesmere Port decisions were made concurrently, the level of emissions were in a similar range, and the climate impact was discussed in both cases. She said:

“These decisions deal with the same gas – natural gas or methane.

“The key issue is why virtually the same level of unmitigated greenhouse gas emission was considered to be in conflict with the NPPF [National Planning Policy Framework] and [be] something that weighed heavily against approval in one appeal but not in the other”.

Ms Dehon said:

“The secretary of state must have been aware of the very different approaches made by the two inspectors and he must have been aware that permission was refused at Ellesmere Port on the basis that every tonne of carbon contributes to climate change.

“But in the Dunsfold case no mention is made of the greenhouse gas emissions or the conflict with paragraph 152 of the NPPF in the secretary of state’s decision.”

Because the cases were alike, the Ellesmere Port decision should have been a mandatory material consideration in the Dunsfold case, she said.

“The minister failed to take account of this mandatory material consideration or explain why a different decision had been taken”.

Ms Dehon said the minister’s failure to explain:

“leaves entirely in the dark those who look at the two decisions, delivered on the same day, to understand that how the level of greenhouse gases by one development was a show-stoppper and that a greater level in another development was not.”

Ms Dehon said the fact that it was shale at Ellesmere Port and conventional gas at Dunsfold had no impact on the nature of the gas or the level of greenhouse gas emissions. “This was not a relevant distinction between both cases”, she said.

“Both decisions, as they currently stand, create significant uncertainty as to what levels of unmitigated greenhouse gas emissions are acceptable in planning policy terms. and called for the Dunsfold decision to be quashed.

For the secretary of state, James Strachan KC, defended the Dunsfold decision and how it was made. He said:

“Dunsfold was a different case [from Ellesmere Port]. It related to a different development proposal; in a different part of the country; with a much longer operational duration and critically assessed against a different national policy context.”

He said:

“The Ellesmere Port decision concerned shale gas exploration, not conventional gas, and that therefore brought with it a raft of other policy considerations that were not relevant to Dunsfold.”

The inspector in the Ellesmere Port case concluded that significant weight should be given to the unmitigated greenhouse gas emissions, Mr Strachan said. “The same considerations were simply not applicable to the Dunsfold project,” he said.

Mr Strachan said:

“Protect Dunsfold’s case falls into the elementary trap of treating planning decisions as though they are mechanistic exercises concerned only with absolutes.”

For UK Oil & Gas, David Elvin KC said carbon emissions were not a key issue in the Dunsfold case.

Harm to the Surrey Hills

The court was also told that the government failed to apply national planning policy in the Dunsfold decision on harm to protected areas.

The Dunsfold site is on the edge of the Surrey Hills area of outstanding natural beauty.

The NPPF states, “great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty which have the highest status of protection about these issues”.

The NPPF also requires development in the setting of an AONB to be “sensitively located and designed to avoid or minimise adverse impacts on the designated areas”.

For Waverley Borough Council, Jenny Wigley KC said the minister must “have regard to these policy requirements and to give reasons for any departure from them”.

She said:

“I do not accept that the inspector adopted the approach required by the policy. What needs to be shown by the inspector’s conclusion and the secretary of state’s decision is that the approach advocated by that policy has been adopted.”

She said the inspector considered the harm to the AONB constituted a significant adverse impact, and the secretary of state agreed.

But in the minister’s decision, she said, the weight given to the landscape harm was considered moderate and grouped with harm to local businesses and UKOG’s failure to comply with local planning policy on site selection.

Ms Wigley said:

“There is no explanation why all were lumped together and treated together.

“The secretary of state accorded all three collectively as considered to attract moderate weight. There was no consideration that the AONB was given increased weight.

“That, in itself, is a clear contraindication to the claim that the correct policy approach was adopted.”

Ms Wigley said this was in “stark contrast” to the weight given in the decision to the benefits of gas exploration, also required by the NPPF.

“That was given significant consideration in the inspector’s report and the secretary of state decision letter”.

Defending the government, Mr Strachan denied the inspector or secretary of state had ignored the great weight to be given to harm to the AONB. He said:

“the inspector will have understood the national policy [on AONBs], as will the secretary of state – that is the starting point.”

They both “referred explicitly and separately to the effect of the development on the AONB as something to be taken into account above and beyond the impact on landscape generally”, he said.

“Neither the secretary of state nor his inspector treated the harm to the AONB as being on a par with other harm to landscape character and appearance.”

He said the Surrey Hills AONB had been described as having “great sensitivity”.

However, Mr Elvin, for UK Oil & Gas, said the weight that should be given to harm to the AONB had not been an issue at the public inquiry. It was a well-established principle, he said. 

The judge, Dame Karen Steyn, reserved her ruling.