A residents’ group opposed to Cuadrilla’s plans to frack at a site in the Fylde area of Lancashire released the opinion of a specialist barrister this afternoon.
It contradicts legal advice given to Lancashire County Councillors last week that in the event of an appeal against refusal there would be a high risk of costs.
The group said it had released the opinion because the council would not let it address the committee considering the application or submit a written document.See report
The committee is due to decide the application on Monday.
Planning officers had recommended the committee approve the application for Preston New Road. At a meeting last Wednesday, members were also told that a refusal would probably be challenged and if it were overturned costs would probably be awarded against the council.
In a written version of the advice, the council’s QC, David Manley, said he was aware of no objective evidence to support a refusal of planning permission. If the committee refused the application this would be considered unreasonable in planning terms, he said.
“In the absence of clear evidence to gainsay the views of the various consultees … and the Case Officer, there is a high risk that a costs penalty will be imposed upon the Council.”
He also said the planning officer could not give evidence at any appeal and it “would be difficult if not impossible” to find a reputable independent planning consultant to defend LCC’s position.” Members of the committee would have to give evidence, he said.
The Preston New Road Action Group, which opposes Cuadrilla’s plans, asked Dr Ashley Bowes, a specialist planning barrister to review Mr Manley’s advice. They made that opinion public this afternoon.Link here: Preston New Road Advice
Dr Bowes said Mr Manley’s advice did not reflect the full picture of evidence before the committee or the full extent of members’ duties and powers.
He said applications which did not comply with the development plan should be refused unless there were good reasons not to. In Lancashire, the development plan comprises the Lancashire Waste and Minerals Plan and the Fylde Local Plan.
Dr Bowes said it was up to councillors to decide if an application complied with the development plan or whether there were any issues that outweighed this.
“In particular”, he said, “members are entitled to depart from their officer’s advice provided there is a rational and discernible basis for doing so”.
Dr Bowes said there was evidence that the Preston New Road scheme, if approved, would result in “demonstrable harm”, particular from its impact on the landscape and visual amenity. The committee may decide, he said, that this puts it in breach of policies EP11 of the Fylde Local Plan and DM2 of the Lancashire Waste and Minerals Plan and that the harm is not outweighed by the temporary (six year) timescale of the scheme.
A report to the committee by noise consultants for PNRAG concluded that there would be unacceptable noise from the site. The consultants said proposed conditions were not appropriate to mitigate the harm. This could also put the scheme in breach of policy DM2, Dr Bowes said.
On Wednesday, the committee voted on a motion to refuse the application, using these and other policies as a reason. The vote was tied seven-all with one abstention. The chairman used his casting vote to defeat the motion.
Dr Bowes said if the committee refused the application Cuadrilla was entitled to appeal. The usual rule was that the council and the company would bear their own costs, regardless of the outcome of the appeal, he said. The exception is where the planning authority has acted unreasonably by not substantiating its reasons for refusal.
He said the impact of the fracking site on the landscape and the unacceptable noise “would be wholly defensible at appeal on the evidence before the committee”.
“Provided the eventual reasons are supported by evidence at appeal there is no serious risk of costs even if the appeal is allowed”.
A spokesperson for the PNRAG said “We have been forced to take the unusual step of publishing our legal advice because it seems the only way we can show the committee members our support, and that of our barrister, for them and their ability to take a decision on the merits of the application, unfettered by a fear of being unable to refuse without the council suffering significant costs of appeal.
“The councillors themselves have expressed the belief that they have been misled by their officers’ legal advice. We hope this will help restore balance to their considerations and help them make a just decision on this application which is vital for the future of our homes and lifestyle.”
The meeting to decide the application starts at 10am on Monday 29th June at County Hall in Preston.