Regulation

Reflections on Cuadrilla’s fracking inquiry

With the close of the public inquiry into Cuadrilla’s fracking plans this evening, we asked people who were there to reflect on the 19 days of hearings.

Cuadrilla and seven organisations were represented at the inquiry, which reviewed the company’s applications to frack at Roseacre Wood and Preston New Road, Little Plumpton.

The inspector, Wendy McKay, heard evidence from 26 expert witnesses and 146 members of the public.

Here are the thoughts of the appellant, Cuadrilla, three of the groups opposing the appeal (Friends of the Earth, Preston New Road Action Group and Roseacre Awareness Group) and neutral observers.

The Appellant

Francis Egan, Chief Executive Officer, Cuadrilla

Francis Egan“In our opinion the five week public inquiry has allowed a very full examination of our appeals and we remain optimistic regarding the outcome.  We believe we made a compelling case on the three central planning issues of traffic, visual landscape and noise which were the only grounds on which our planning applications were rejected. We now look forward to receiving a considered decision on our appeals by the Secretary of State for Communities and Local Government.

“We have heard some question the Secretary of State’s recovery of our appeal on the grounds that it diminishes local democracy. However our right to appeal is a fundamental part of that same democratic planning process available to every applicant.  This is the same democratic process which allows groups to seek judicial reviews of planning applications which have been granted by County Councils to Cuadrilla such as by West Sussex County Council at Balcombe and by Lancashire County Council for our seismic monitoring site application Roseacre Wood. The democratic planning process encompassing local and national decisions is something that is available to all and it is not for people to cherry pick just the parts that deliver the outcomes they like.

“The guidelines for costs applications and awards are distinctly different to the planning merits on which the appeals are reviewed. After careful consideration we have submitted a costs application for both of the appeals relating to our proposed Preston New Road (PNR) site.  We believe this is a proportionate request to what we consider to be irresponsible decision making by Lancashire councillors who disregarded both their Council officer’s expert technical planning advice and their own legal advice in deciding not to approve the Preston New Road applications.

“Whilst we believe we have outlined a very strong case against the negative planning decision regarding our proposed exploration at Roseacre Wood, and that the planning considerations are overwhelmingly in our favour, we have decided not to pursue costs for this appeal.  This is not because we think our case is any less strong than at Preston New Road but merely reflects the fact that  Lancashire County Council’s Development Control Committee had advice from their highways officers to reject our application in respect of perceived transport impacts from the proposal. Therefore following the planning guidelines on costs we have decided not to apply for costs.

“We recognise that onshore shale gas exploration still feels relatively new in the UK and we remain committed to demonstrating that fracking can and will be undertaken safely and in an environmentally responsible way, whilst minimising any temporary impact on local residents.  I am confident that we will demonstrate to Lancashire and the UK that shale gas exploration, which is a  national energy security imperative to explore for the natural gas to heat homes, also represents a very real opportunity for Lancashire to create much needed local jobs and significant local economic growth.”

The opponents

Helen Rimmer, North West campaigner, Friends of the Earth

Helen Rimmer“The inquiry has heard compelling evidence from expert witnesses on issues including climate change, waste, public health, noise and transport – as well as over a hundred detailed testimonies from community members that clearly shows fracking in Lancashire is unacceptable for local communities and the environment.

“Parish councils, Fylde Borough Council and Lancashire County Council have all sad no to these plans, alongside thousands of local people and businesses.

“The government promised that local people would not be cut out and ignored – Greg Clark must not go back on this promises and force fracking on Lancashire.”

Pat Davies, chair, Preston New Road Action Group

Pat Davies2.jpg

“Preston New Road Action Group is relieved to be at the end of this six-week public inquiry for Cuadrilla’s appeal against Lancashire County Council. Over the weeks, a vast amount of significant evidence and witness testimony was presented to planning inspector, Wendy McKay.

“We’ve been fully present throughout the last six weeks of the inquiry to ensure that at all times, the inspector was made aware of the strength of public opposition to this appeal. It is our view that Lancashire has spoken and the decision has been made by the most appropriate authority.

“Our elected councillors performed their role at last year’s hearings with individual and collective responsibility to their constituents and we should be proud of them.

“The main role at the inquiry fell to Lancashire County Council to defend their refusal decision. Our role at Preston New Road and Roseacre was to support the Council and add further weight and value to those arguments.

“Our friends at Friends of the Earth, as a key Role 6 party put forward tremendous compelling evidence on health and waste water radioactive material disposal. Serious concerns and questions remain unanswered. These questions, with the addition of climate change issues, are a crucial part of this decision.

“We rely on the inspector to again assess the evidence including this new evidence and proposed the dismissal of these appeals to the Secretary of State.

“Preston New Road is already on a strategic, legal path to ensure should this decision be overturned we will not stop until we obtain justice for our community. The voice of this community must and will be heard.”

Elizabeth Warner, Roseacre Awareness Group

Roseacre Awareness Group

“Much has been learned about the heavy demands of the process and both the quality and quantity of the evidence which will be considered by the Inspector.

“On the first of these the most obvious impact has been the exposure of the Arup work as a catalogue of highly selective and skewed assessments in which they started with the conclusion (that the operation was acceptable and would do no harm) and worked backwards. Wrong British Standards were applied, traffic and pedestrian surveys lacked all statistical credibility and visualisations contrived to minimise impact. Arup Witnesses were forced to acknowledge or even distance themselves from their colleagues’ work.

“Only the commissioning of truly independent experts provided the robust response upon which the Inspector will be able to rely (none of our witnesses undertook to say what we wanted to hear, only to review Arup’s case and proceed therefrom) and we are immensely grateful to them. We are more grateful still to everyone who has contributed the funds we needed.

“My feeling is that we have exposed the full scale of both the shameful conclusions and the “demonstrable harm” which will be done not just to residents but to huge numbers of people who have queued up to testify that Roseacre Wood is both a valuable and much valued amenity in the heart of rural  Fylde.  We are very hopeful that the weight of our case has built on the massive concerns regarding the safety of the roads, the principal reason Lancashire refused the application. We believe The Appeal will fail and might will, for once, bow to right.

The observers

Laurence Williams – PhD student, Science Policy Research Unit, University of Sussex

Laurence Williams“All in all this was a serious, thorough and impressive exercise in scrutinising the planning issues arising from the applications under appeal – from barristers, experts and indeed members of the public. That level of scrutiny has revealed a series of issues with the applications concerning waste treatment capacity, scientific uncertainty over public health impacts, and the methods, standards and interpretations of noise, traffic  and landscape impacts. The weight or decisiveness of these issues is for others.

“But the most interesting questions arise where there is ambiguity over the extent of the remit of planning. Where there are issues that could plausibly arise, and that can be foreseen with reasonable clarity, but which may be overlooked on what can only be described as a technicality – because they may be deemed as either generally not planning issues, or specifically not material to these applications.

“The best example of this is the issue of waste treatment capacity and the assumption in favour of the proper and effective functioning of regulatory regimes, such as the EA. Is this an ‘irrebuttable presumption’ or does a planning decision maker have discretion to scrutinise the issue should they feel evidence before the Inquiry justifies them doing so? It is obviously sensible to not have the planning system and EA overlap in what they scrutinise – to do so would be a waste of time and resources. It is also obviously sensible to have planning decision makers to attend to issues that have not been thoroughly treated by the EA, or where there are suspicions that mistakes may have been made, and that have obvious land-use impacts.

“Wilful blindness or somnambulism are surely antithetical to planning. Which is presumably why it’s called planning, and not hoping or deferring or ignoring.”

Andrew Snow – Doctoral Research Candidate, Planning and Environmental Management , University of Manchester

Andrew SnowThe inquiry has been characterised by conflict – between developer and local government, between local government and central government, between developer and local residents, and between local residents and central government.

While not surprising, in that parties are pitted against each other in competition for a positive decision, the inherently contradictory nature of the government’s approach to planning has self-evidently exacerbated this conflict.

On the one hand, the government champions the localism agenda and purports to be the ‘greenest government ever’. Yet its key interventions in planning and around the practice of fracking have essentially paved the way for an entrenchment of the UK’s dependence on fossil fuel and an imposition of a form of development on a local population that has roundly rejected it.

The inquiry has seen this contradiction antagonise and galvanise local resident groups and Lancashire residents in an organised and impressive way, yet the lingering feeling from the way in which Cuadrilla conducted their case was that they did not expect local concerns to be given all that much weight. Given the government’s approach this is in no way surprising. This is perhaps the most concerning aspect of this inquiry process – that the way in which the planning process has been organised has given the impression that Cuadrilla’s success is a foregone conclusion.

This report is part of DrillOrDrop’s  Rig Watch project.  Rig Watch receives funding from the Joseph Rowntree Reform Trust. More details here

7 replies »

  1. I am very confused by the observers comments that
    “The best example of this is the issue of waste treatment capacity and the assumption in favour of the proper and effective functioning of regulatory regimes, such as the EA. Is this an ‘irrebuttable presumption’ or does a planning decision maker have discretion to scrutinise the issue should they feel evidence before the Inquiry justifies them doing so?’

    The answer is simple. The planning process assumes that the EA will do their job properly. It is not part of the LCC brief to suggest that the EA will fail to carry out their regulatory role. If they say they are happy with the disposal of fluids then thats it. As the Cuadrilla QC pointed out, if there was not capacity to deal with it, it would be stored safely until facilities became available.

    The trouble is that there are a load of self appointed experts out there that want to find fault with everything.

    Odd also that all the ‘noise experts’ were unable to cite a case of a project being restricted to less than 42 dB night time noise. Especially odd seeing as that was whay LCC specified as well. https://www.facebook.com/BackingFracking/photos/a.607483122725871.1073741828.601105686696948/687250214749161/?type=3

    • Hi Ken, thanks for the response. Apologies for inducing confusion, let me try and clarify.

      We half agree I think. I don’t think it is necessarily ‘that simple’ – though I do of course think a decision maker could easily justify taking the view that it is ‘that simple’ in relation to planning policy.

      I also think a decision maker has sufficient cover to take a different view – that where there are possible knock-on land-use issues, and where the EA has not thoroughly scrutinised this specific issue (offsite treatment capacity), and where there is evidence before the Inquiry that this may constitute a problem (that of Mr Watson), a slightly more expansive view of the remit of planning might be taken. It is a question of the decision makers interpretation and judgement as to whether it is ‘that simple’ or just a little more complicated. Each approach can be satisfactorily justified in planning terms. That’s my first contention.

      My second, slightly bolder, contention is that to take the ‘it’s that simple’ approach would constitute something like ‘wilful blindness’. Though to be clear, I’m advocating a look into it. I’m not predicting something outrageous will or should be found, I’m saying there’s sufficient reasonable doubt to justify a second authority’s scrutiny on this specific issue.

      There’s a slightly further removed point here too. There’s a difference between asking procedural questions about what the planning process tells us to do (I’m suggesting there is wriggle room for discretion on this issue) and asking critical questions about whether the answers to those procedural questions are good or right or sensible. It’s perfectly legitimate to occosionally ask both kinds of questions. If the procedural answer in this specific case really was ‘it’s that simple’, as you suggest, I would make no apologies for asking a series of critical questions about how sensible that really is.

      • Fair points Lawrence, and well put. It is however not really an issue that need so much energy to discuss. If the capacity of the local system is not up to future wells, then the capacity will increase, as happens in any market economy. If fluids have to be stored for a while thats no big issue. That happened after the Preese Hall 1 well I gather, and after that the levels for classification of flowback were tightened. The original flowback water was classed as fine to dispose of as the radioactivity levels were low. However the EA had a rethink. Its about 10 times the radioactivity of a particular brand of bottled water IIRC, which does put it into context!

        What I take issue is the number of people who want to find issues with matters that have been looked at by experts, when they have very limited or zero technical knowledge or understanding. I am very definitely not an expert, and have never claimed to be one. I do know people who are however, and quote them frequently. My 12 years as a senior engineer in the industry some time ago do help a lot in understanding some basic well operations however

        Thats why I have spent a lot of time on https://en.wikipedia.org/wiki/Hydraulic_fracturing_in_the_United_Kingdom Its the nonsense that people talk that gets me, so I (and others) try to guide people to reliable sources of technical information

  2. Ken Wilkinson – as usual you could have stopped after typing the first four words.

    Had you bothered to follow the arguments presented by BOTH sides you would know that the issue is by no means as clear cut as you pretend. (So nothing new there then eh?)

    As Ms Dehon made very clear to those who were actually listening, Cuadrilla’s case required the decision-maker to turn a “very blind eye” to the role of the other regulators.

    As Ruth ably reported she said:

    “There is not a presumption that the other regulators would do their job properly. The word in the guidelines is assume, not presume.

    The judicial review brought by Frack Free Balcombe Residents’ Association found that the planning authority had discretion to consider issues that could not be left to the regulator. The judge in the case did not say there was a presumption that issues could not be taken into account, Ms Dehon said. This had been claimed, erroneously, by Cuadrilla, she said.”

    Thank goodness it’s the Inspector who will make the recommendation, because she, unlike you, listened to all the evidence presented, and understands planning law better than “a self-appointed expert” from Westbury-on-Trym.

  3. Such an anti climax end. I thought there would be angry mob yelling abuse at the participants because the decision turning against their causes car turned table smashed window broken mass civil unrest. But nothing happened. Everyone just quietly went home and await their fates. How boring is that. Fracking issues seem to have little impact on the people after all.

    • ….Or maybe we rational observers who attended and spoke at the hearing and who have researched the issues aren’t really the rabid mob of Putin funded professional agitators that the industry and its shills would have people believe 🙂

      We’ve all come home to draw breath and wait for the next chapter to unfold – this isn’t a soap opera you know 🙂

  4. Laurence hits the nail on the head about the conflict between nationalised service provision and regional council governance:”But the most interesting questions arise where there is ambiguity over the extent of the remit of planning. Where there are issues that could plausibly arise, and that can be foreseen with reasonable clarity, but which may be overlooked on what can only be described as a technicality – because they may be deemed as either generally not planning issues, or specifically not material to these applications.”

    The regional policy for mineral and waste is at odds with diktat from nationalised water companies trying to make a fast buck, and not brought into this Inquiry at all, when United Utilities are one of the worst offending water polluters, so how are they to be trusted with waste disposal or water provision for this industry? In addition, waste companies do not exist in the number required to handle the highly hazardous radioactive or polluted waste water this industry produce.

    I find the disconnect between regional governance and an essential resource governance badly controlled by Westminster via the poorly staffed EA, one of the worst thought through aspects of the race to privatise and simultaneously disempower local government and local democracy.

    A Mineral and Waste department is charged to look at WASTE, the clue is in the title, therefore the council via this department should engage with taking into account how any waste will be handled, especially in a region where there is high hazard nuclear waste production and disposal. Again the disconnect between national and regional policy shows how damaged democracy is, and why this Inquiry is limited to ignoring the waste issue on grounds of this disconnect…or ”technicality as Laurence calls it.

    This has serious consequences in light of how badly managed waste disposal is in the UK currently, and probably due to local mineral and waste departments being bound and gagged by the privatisation of our most important public services, and not being allowed to have greater control over how these are factored into their planning process.

    Here’s a few examples of why the EA isn’t doing the job it is charged with, and how other orgs are expected to fill the gap and do the job of the EA, and why local councils should in future be more involved with privatised water and waste industries which SHOULD be publically accountable to all—and these constitute only a few instances published by only one of many agencies watching over what the worst regulatory framework in the world has delivered on UK shores:

    United Utilities settled £2,500 claim by Fishlegal to compensate anglers
    loss of 3 days of fishing rights Autumn 2012
    A major mains water pipeline, located near the M62, had burst and eroded
    tonnes of sediment into a tributary of the Calder at Padiham, discolouring
    the two rivers and making them unfishable all the way to Preston some 30
    miles downstream.

    United Utilities was successfully prosecuted by the Environment Agency in
    2014 and fined £33,000, but evidence was only put forward for a conservative
    three days of pollution – which is what the Agency’s records supported –
    even though it had first been reported by anglers at least two days earlier
    over a weekend.

    The worrying feature about this, is that Fishlegal are doing the job of the
    EA, see the last sentence about how the EA ”might not notice” Just think
    how badly they will scrutinise not only frackwater pollution, but the
    disposal of it, when so many law suits are currently necessary currently.

    John Whitham, Secretary of the Padiham & District and Mid-Ribble Angling
    Society, said:

    “Members of our club, and of other clubs within the Ribble Fisheries
    Consultative umbrella group…. keep a constant look-out for pollution and
    other threats on the two rivers. They often pick up and report incidents
    that the Environment Agency would not otherwise have noticed, from slurry
    spills to sewage leaks.”

    Fish Legal forces action on the Clyde
    After much research, Fish Legal has shown Scottish Environment Protection
    Agency (SEPA) that the Dalmarnock Water Treatment Works has been spilling
    sewage into the Clyde on a regular basis and that this was a material cause
    of a massive kill in July, 2013. SEPA has responded by giving Scottish Water
    notice to produce detailed proposals for the modernisation of the plant with
    appropriate timescales.

    Fish Legal calls for action to save river Dee
    17 December 2015 Fish Legal has called on Scottish Environmental Protection
    Agency to take action and prevent a major environmental incident to the
    river Dee.
    The river faces the risk of significant environmental damage if large
    quantities of unsecured earth and silt from engineering works on the
    Aberdeen By-pass are washed into the river by severe winter storms.
    Siltation of the river bed can cause enormous damage to river life including
    salmon spawning grounds.

    Why weren’t local councils in regions mentioned above, applying their mineral and waste objectives to the industries mentioned so that none of this horrendous pollution would happen in the first place? How is the EA, Westminster ruled, a credible agency for dealing with frackwater waste in light of the incapacity and appalling monitoring and enforcing of regulations it is delivering in place of local governance policies and guidelines?

    This isn’t an issue that should be brushed under the carpet as the situation is already massively out of control in this country, and while this inquiry serves to ignore the problem, as does Westminster, the rest of us live near badly monitored landfill sites, appallingly out of control waste disposal utility and the health hazards to all life that this creates.

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