A High Court judge gave permission this morning for a judicial review of the decision by Lancashire County Council to approve Cuadrilla’s monitoring scheme at Roseacre Wood.
The scheme was part of Cuadrilla’s plans to frack up to four wells at the site in the Fylde area of Lancashire. In June this year, the council’s development control committee turned down the fracking application but granted permission for the monitoring work.
An anti-fracking campaigner, Elizabeth Warner, and the Roseacre Awareness Group sought permission to challenge the legality of the decision on the monitoring scheme.
A written application for a judicial review was refused but the group had the chance to present its arguments this morning at a short hearing before a judge at the Royal Courts of Justice in London. Mrs Justice Lang allowed the challenge on all the grounds raised by the group. She said:
“In my judgement the claims require full consideration at a judicial review”
After the hearing, Mrs Warner said she was delighted. She said:
“There are clear grounds for a judicial review and they spoke for themselves.”
One of the reasons given in the original refusal of the judicial review was that the application had been filed a day late. But Justice Lang questioned whether it had in fact been delayed. In her view it had been filed on the day of the deadline, exactly six weeks after the decision.
It also emerged that the person delivering the application had been sent to the wrong office in the Royal Courts of Justice. A letter explaining the problem had not been given to the judge making the original decision.
Mrs Warner’s barrister, Estelle Dehon, argued that Lancashire’s development control committee had been misdirected by council officers when making its decision on the monitoring scheme.
She said the planning officer had erroneously downplayed the scheme’s lack of compliance with two local planning policies which dealt with the impact of development on the countryside and on landscape character.
She said the planning officer’s report to the committee misled members about the need for the development. She said the monitoring scheme was designed to mitigate the main application for fracking. It could only be supported in planning policy, she said, if the main application had been approved. The committee had been misdirected when it was told to consider the monitoring application on its merits.
Ms Dehon also said the decision had not taken account of the cumulative effects of the scheme.
“We know that it must be a relevant consideration: they [cumulative effects] were the basis of the refusal of the application for a monitoring scheme at Preston New Road.”
On cumulative effects of the Roseacre Wood scheme, she said:
“The officer’s report does not deal with this adequately. Nor did the committee”.
“It is not right to say this would not make any difference to the decision [on the scheme]. It was taken into account at Preston New Road and that was refused.”
Giles Cannock, representing Lancashire County Council, said the scheme had complied with the local minerals plan. It was legally correct, he said, to attach greater weight to the minerals plan, which dealt with the minerals industry and was more recent, than the other planning policies.
He said the link between the monitoring scheme and the fracking application had been “expressly made clear” in the officer’s report and at the committee.
“We say that is correct and legally unimpeachable”.
He said cumulative impacts had been raised in the officer’s report because, among other references, it had been mentioned in objections by Treales, Roseacre and Wharles Parish Council and others. He said:
“This is not an arguable case and it would not be right to extend to judicial review.”
Mrs Justice Lang ruled that Roseacre Awareness Group was not a legal entity so it could not be a party to the judicial review. Mrs Warner would be allowed to act on her own and as a representative of the group.
Both sides agreed that the judicial review would be dealt with under the Aarhus Convention, which aims to allow the public to challenge decisions which affect the environment. The convention limits costs to £5,000 for individuals. But Mrs Justice Lang said because Mrs Warner was acting as a representative of the group, the cap on her costs should be raised to £10,000. The council’s costs are limited to £35,000.
After the hearing Mrs Warner said the doubling of her liability would not stop her continuing with the judicial review but it would require more fundraising.
She described today’s decision as a “landmark moment”.
“Far too much has been advanced too easily in the past. There are powerful alliances working together and some of the safeguards have been eroded.”
“Clearly there was hope in some parts that this was done and dusted but the reality was never that. From the outset we were confident that the grounds would be successful.”
“This is an important principle. It does show that given due process that this juggernaut can be halted.”
The judicial review will be in London at a date to be fixed. It is expected to last one day.