Fracking up the pressure - Chapter 2
Author: Angus Evers
Applies to: England and Wales
In our October 2016 legal update 'Fracking up the pressure', we reported on the Secretary of State's (SoS) decisions in relation to four planning appeals made by the natural resources exploration and production company, Cuadrilla.
On 12 April 2017 the Planning Court rejected legal challenges to one of those decisions.
The procedural background to the case is complex. Cuadrilla originally made four planning applications to Lancashire County Council (LCC) in relation to drilling for shale gas in the Bowland Shale at two sites in Lancashire:
- Exploratory works at Preston New Road;
- Monitoring works at Preston New Road;
- Exploratory works at Roseacre Wood; and
- Monitoring works at Roseacre Wood.
LCC refused the first three applications and granted the fourth subject to conditions. Cuadrilla appealed against the three refusals and against the conditions imposed on the permission for the monitoring works at Roseacre Wood. The SoS granted three of the four appeals and re-opened the public inquiry into the Roseacre Wood exploratory works appeal.
Two objectors - the Preston New Road Action Group (PNRAG) and the interestingly-named Gayzer Frackman - brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 (a similar procedure to judicial review) against the SoS's decision to grant planning permission for the exploratory works at Preston New Road. Each of the claimants raised different grounds of claim, which the court dealt with separately in an 82 page judgment.
PNRAG's grounds of claim
Four of PNARG's five grounds of claim were based on similar legal principles - the incorrect interpretation of local and national planning policies, and flaws in the planning inspector's reasoning. The court ruled that although these grounds were arguable, there was no legal error by the planning inspector or the SoS. It stressed that flexibility is required in the interpretation of planning policy, which must not be interpreted if it were some form of statute, contract or other legally binding instrument.
PNRAG also argued that the SoS's decision was procedurally unfair because Cuadrilla had changed its position in relation to one of LCC's local planning policies without the statement of common ground being amended or the change being communicated to PNRAG or to the general public. The court ruled that although PNRAG had an arguable case on this ground, their claims were unsubstantiated, as Cuadrilla had set out its position in relation to the policy in its evidence and was cross-examined on it by PNRAG's counsel at the inquiry. However, the court was also critical of Cuadrilla's and the SoS's assertions that PNRAG ought to have made further submissions to the Planning Inspectorate or the SoS after the end of the inquiry.
Gayzer Frackman's grounds of claim
Mr Frackman first argued that the environmental statement accompanying Cuadrilla's planning applications for the Preston New Road site was inadequate, as it failed to consider the environmental impact of any extended flow testing and gas production that might take place after the exploratory works. He invited the court to make a reference to the Court of Justice of the European Union (CJEU) on the issue. Although the court accepted that this ground was arguable, it rejected his arguments and declined to make the reference to the CJEU, on the basis that any further development would be the subject of a new planning application and environmental statement. There was also no evidence that any gas production would result in increased gas consumption or greenhouse gas emissions in the UK - it would simply displace gas that would otherwise be produced elsewhere.
Mr Frackman's second argument was that, applying the precautionary principle, the SoS could not have rationally concluded that it was appropriate to grant planning permission and that public health and other impacts would be reduced to an acceptable level and effectively controlled by other regulatory regimes. The court considered this unarguable.
The case is a useful reminder of the difficulties of challenging the interpretation of planning policies in the light of the existing case law on similar issues and the Planning Court's rejection of the legal challenge to North Yorkshire County Council's decision to grant planning permission to Third Energy to carry out hydraulic fracturing (covered in our February 2017 legal update 'Hydraulic fracturing - the third way'). Seeking a reference to the CJEU was undoubtedly an ambitious move, as the English courts have traditionally been reluctant to refer cases to the CJEU and may be even more reluctant to do so now that Article 50 has been triggered. To complicate matters further, the SoS's decision to re-open the inquiry for the Roseacre Wood exploratory works appeal is still the subject of a separate judicial review application.
Read our previous article, 'Fracking up the pressure' here.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.