A group of anti-fracking protesters arrested at the IGas Barton Moss drilling site will now go to trial after a judge rejected their argument that the company had acted illegally.
The protesters had said that the cases against them should be withdrawn and the charges dropped because their actions had been justified by alleged breaches of environmental regulations by IGas.
But in a legal ruling released to DrillOrDrop this morning, District Judge Prowse said the protesters could not rely on the defence of unlawfulness to refute charges of aggravated trespass.
There are now likely to be more legal arguments and a lengthy trial involving more than 50 separate charges and more than 40 people.
On Monday, the protesters’ barrister, Richard Brigden, told Manchester Magistrates Court that there was prima facie evidence that IGas had acted illegally by breaching environmental permit regulations. The defence case was that there were three potential offences by the company:
- Deposit of clay on an adjacent field that had been removed from the drilling site during construction
- Increase in the concentration of PAHs and heavy metals in the field as the result of movement of soil during site construction
- Pollution of water with contaminants arising during construction of the site.
In his written ruling released late yesterday (Tuesday 8th September 2015), DJ Prowse said the Environment Agency’s witness Sarah Scott considered the deposit of clay was within the terms of the licence.
“Even if she is wrong as to the law, if that was the Agency’s view, it would afford a defence to IGas.”
During earlier hearings, the court heard that there had been no contamination from drilling the exploratory borehole. Any increased levels of contaminants was probably caused by moving soil around during the construction of the site.
DJ Prowse said Barton Moss had been used in the past as a disposal site for industrial waste. But he said:
“It is impossible to say with any precision what was tipped where or whether levels of contamination are relatively consistent across the site or vary from location to location.”
“The only realistic assertion which could be made is that the construction of the site mobilised pollutants which were already present.”
“The actual process of construction was wholly in accordance with the licence and planning consent.”
The judge relied in his ruling on case law from the arguments presented in 2014 in the case of Richardson versus the Director of Public Prosecution. This established what level of alleged offence was needed for it to be used by the defence.
DJ Prowse said: “If the process of construction was the cause of small-scale increases in levels of pollutants this was, in my judgment, incidental to the construction process itself.”
He said this was the sort of “collateral regulatory offence” that the Richardson case had said could not be used in the defence of unlawfulness.DJ Prowse concluded:
“In the circumstances I do not find that any of the defendants in these conjoined proceedings are able to rely on the defence of unlawfulness.”
Yesterday’s ruling was the latest development in a long-running case. The court listed 45 people charged with a total of 52 charges, including obstruction and aggravated trespass at Barton Moss, during early 2014. All the people charged deny the offences.
Reacting to the ruling, Helen Chuntso, from BIFF (Britain and Ireland Frack Free), criticised the Government’s current dash for shale gas. She told The Salford Star
“This case has, in detail, brought to light the complexities of the regulatory processes. The shortcomings of the Council planning system, unaware at the time of allowing the permit, has resulted in the excavation of glacial mud required for shale exploration, rather than the shallower, permit-stated coal bed methane well.
“The Environment Agency’s supposed ‘Gold Standard Regulation’ has revealed how waste can be dumped off permit. This case has been crucial in highlighting that the recently enforced 16 week turnaround time for councils to grant shale exploratory permits is unwise and dangerous for all.”
Judge’s ruling: R v Various (Fracking R v Richardson issue) 7sep15
Updated at 15.54 to include comments by Helen Chuntso