Legal

Breaking: Group starts legal challenge over Lancashire fracking go-ahead

lancashire-responds-9-frack-free-dee

A community group has begun a legal challenge to the Government’s decision to grant planning permission for fracking at a site in Lancashire.

In an initial letter to the Communities and Local Government Secretary, Preston New Road Action Group has said his decision to overturn Lancashire County Council’s refusal of permission for the site at Little Plumpton was unlawful.

Sajid Javid announced on 6 October that he was following the recommendation of a planning inspector and granting consent to Cuadrilla to drill, frack and test up to four wells.

Preston New Road Action Group, represented by the law firm Leigh Day, said today the decision was “fundamentally flawed” because it breached the local development plan.

The group said the decision “misapplied planning laws and policy” and the Government had not “properly considered the disproportionate effect that fracking on the site would have on vulnerable residents such as the elderly and school children nearby”.

On 29 June 2015, Lancashire County Council refused permission for the site, along with a similar proposal for Roseacre Wood. Cuadrilla appealed and the case went before a five-week public inquiry in Blackpool in February and May this year.

Today’s letter before action from Leigh Day asks Mr Javid to reconsider his decision.

If he refuses, Preston New Road Action Group (PNRAG) said it would consider bringing a statutory challenge to the decision under section 288 of the Town and Country Planning Act 1990.

A spokesperson for the group said:

“PNR Action Group are appalled at the decision of the Secretary of State to overturn local planning decisions in this manner. It was clear at a local level this application was rejected by both the Planning Committee and local residents. There is no social licence to frack Preston New Road.

“The dismantling of local democracy to facilitate this industry is a travesty of justice and begs the question of whether democracy exists any more at a local level. This decision by Westminster is troubling on a number of fronts.

“Lancashire said ‘no’ loudly and clearly and in line with local planning policies, that decision should stand.”

Rowan Smith, of Leigh Day, said:

“We believe that the Government’s decision to overturn the Council’s refusal of planning permission to allow fracking on the site is fundamentally flawed.

“The decision appears to have been taken in breach of the Council’s development plan, which restricts these types of developments, as well as contrary to the correct planning law tests.

“We will also argue on behalf of our clients that to allow fracking on this site would have an adverse affect on the health of local people and would ruin the much-loved local landscape.”

Second challenge

This is the second legal challenge to the approval of planning applications for fracking in the past few months.

Leigh Day is representing Friends of the Earth and Frack Free Ryedale in its request for a judicial review of the decision by North Yorkshire County Council to allow fracking by Third Energy at Kirby Misperton. That case will be heard in the High Court in London, starting on 22 November 2016.

The action that may be taken by PNRAG is different from a judicial review.

Section 288 of the Town and Country Planning Act allows people to seek to quash the decision of a planning inspector or the Secretary of State following an appeal over a planning application. If the PNRAG case were to go ahead it would be heard in the High Court.

A spokesperson for the Department of Communities and Local Government said it was unlikely that the government would make a public response to Leigh Day’s letter.

A spokesperson for Cuadrilla said:

“We understand the Secretary of state has until this Friday to respond. Clearly we believe that all proper appeal processes were followed for him to reach his decision and really up to DCLG to make any additional comment at this stage.”


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

64 replies »

  1. Wasting your time and money and lawyers will tell you anything to get their fees. Fracking is coming so suck it up.
    FoE’ finances will soon dry up hooray. Read the piece from the ex Greenpeace boss in the Sun yesterday. Unfortunately the liberal media don’t like reporting these pro fracking stances.

    • We wondered when the peeny clones would start to re-appear. Same old same old. Do you also hang around schools wearing scary clown costumes?

      • Well you best get your charity boxes out as you’re going to need a heck of a lot more cash to take on my “capitalist” side. In fact you might as well just give up as your demise is inevitable. We are letting you have your say on the BBC and venting your anger via the liberal newspapers but our generosity is wearing thin.

        • Well well we are a grubby little peeny clown fascist black shirt aren’t we? What next? Yellow stars for protesters? Crystalnacht in Lancashire? Burn down the council Reichstag? Invade Poland perhaps?

    • “Read the piece from the ex Greenpeace boss in the S*N yesterday?” Really? Not worth the paper it’s written on! It really doesn’t help your uninformed case, so not a clever move!

    • Leigh Day are a high profile law firm. They are representing the Preston New Road Action Group.

      We have the voice of the people. We have the resources. We employ the best legal teams.

      A formidable force

      Desperate irrational rantings from pro fracking Sun readers shows how weak the support is for the industry.

      No wonder the pro fracking minority and investors are concerned.

    • Yes! Another victory for Cuadrilla and the oil and gas industry. The more legal challenges these groups launch, the more resources they use! They will soon realize that this challenge is an utter waste of money. Further, the challenge will not change Cuadrilla’s schedule in the least. I was hoping that these “useful idiots” – to quote the Russians, would muster together the funds for a challenge. I would imagine they would also have to post a large bond as they could be held responsible for Cuadrilla’s legal costs as well? Here’s hoping that this is a VERY expensive endeavor for all parties!!

      • peeny! thought your other two alter egos were a bit tame, frick and frack, just dont cut it do they? Still stuck in that ’33 berlin groove are we? Well well, ‘Useful idiots’ is it? You really should go and talk to the residents who you insult, i’m sure they would give you a decent burial afterwards? But of course you and your other egos would never actually come out from behind your (edited by moderator)anonymity to actually risk being held responsible for your words would you? That would be too much to expect, (edited by moderator) Is Gorilla still paying enough? Better go back to playing the drums for cadbury’s before Götterdämmerung.

  2. So, LDC Planning approve PNR and turns down Roseacre on traffic. Legal instruction from the Council Solicitor is that the councillors cannot take further advice, but Friends of the earth ignore that.

    The planning inspector turns down Roseacre on traffic.

    Sajid Javid turns down Roseacre on traffic, but gives Cuadrilla a chance to sort out the traffic issue.

    But somehow there has been some conflict with planning law. Why didnt Planning pick it up, and why is this described as the Government overturning democracy?

    .

    • Anon, I’m afraid you have your facts wrong. Firstly it is Lancashire County Council and the planning officer and legal advisors of LCC gave the councillors incorrect legal advice – stating they could be individually liable if they refused the PNR site. FoE obtained counsel opinion to confirm this was incorrect. In addition during the course of evidence giving in the private pre committee meeting and at the planning committee – many of the councillors felt that some key information had not been brought to their attention in the planning report. And so as is their democratic right – they refused the application. The argument will be whether sufficient consideration has been given to the local development plans – and that will be a point of law. A judicial review will only be granted if a credible legal argument can be demonstrated. The bar is set very high for a judicial review – they are not granted at the drop of a hat and Barristers and QC’s will not defend a case where they consider there is no legal merit – it simply does not happen. So the idea they are just after fees is a nonsense.

      With regard to Roseacre – the SoS has not refused the appeal – he has deferred – stating he is mindful to grant permission and has given Cuadrilla yet another opportunity to try and overcome highway objections. This is not good practice on the part of the SoS as highway and planning policy and laws are extremely important and actions such as this can set a dangerous precedent for other cases. It also makes a mockery of our development laws. Legally the SoS will be on very thin ice if he grants the Roseacre site – in my opinion because highway safety cannot be taken lightly.
      In the vast majority of cases the SoS will accept the decision of a planning inspector – as they are expert planning lawyers and independent. So I agree this is overturning democracy and I do not blame the people of Lancashire for being outraged.

      • ‘Firstly it is Lancashire County Council and the planning officer and legal advisors of LCC gave the councillors incorrect legal advice – stating they could be individually liable if they refused the PNR site. FoE obtained counsel opinion to confirm this was incorrect.’

        What you really mean to say is that there are 2 legal opinions. The first from LCC lawyers. and the second one shoved through the letterboxes of councillors over the weekend, after they had been instructed not to see any further opinions by the councils own legal team.

        As I understand it the Council had no legal right to refuse the application for PNR.
        Costs have been awarded against the council (but not for PNR as I understand)

        Hmmm it depends how you want to present it.

        • No that isn’t quite what I meant. Under the Localism Act councillors are permitted to have an opinion and make that opinion known. Providing they do not have a closed mind, consider all the material facts of a case and they have legitimate reasons/grounds to refuse the application – it is their democratic right to choose to refuse an application – irrespective of what recommendation a planning officer may have made
          Had the advice provided by LCC legal services been correct – not only would councillors be able to exercise their democratic duty but I am sure Cuadrilla would have sued them. So what I am saying is in my professional opinion is that it was incorrect legal advice, which is what I stated.

  3. “Today’s letter before action from Leigh Day asks Mr Javid to reconsider his decision.

    If he refuses, Preston New Road Action Group (PNRAG) said it would consider bringing a statutory challenge to the decision under section 288 of the Town and Country Planning Act 1990.”

    This says “consider”? So not actually done yet. I have not seen this section 288 approach before. It will be intersting to see:

    1) If it gets off the ground (probably)
    2) If it gets to High Court (no idea)
    3) If it works (anyone got any precedent on this?)

    Normally the process is Judicial Review so why go this route, unless it is believed that a JR would fail?

    • Hi Paul this is used to challenge the decision made by the SoS after a decision on an appeal and is similar in process to a JR. So it must be based on points of law and as in JR – the bar is set high in terms of demonstrating the grounds. So there is a great deal of work to do before they can submit the challenge and they will be working through this now – this will be why they state they are considering.

      I suspect they have written to Mr Javid as a form of notice of intent – common before taking legal action.

      Apologies if you already know all this 🙂

      • Hi KT
        I don’t know what material evidence was presented re trucking but I do know that overseas the impacts are always downplayed at the planning stage then ramped up afterwards by pushing limits that nobody can really control or enforce (a common complaint).

        Maybe this was all revealed but it should be known that each frack (initially one for each of four wells it appears) requires a million or more gallons of water (coming from where?), tons of sand and tens of thousands of gallons of fracking fluid. Then there’s the highly toxic flowback or waste water to deal with… trucks, pipes, holding tanks, you name it. Many more trucks are needed for the (literally miles) of well shafts and casings, then there are the very high power diesel pumps brought in, to generate the 10,000-15,000 psi for the fracking processes – lasting about one (long) day per frack.

        It could be that the exploratory operation is scaled down so as not to scare the locals in which case full information should still be revealed as to the scale of the follow up operations anticipated. Smaller trucks would no doubt be used than in the US example (see link) due to the scale of things in UK vs America but that just means there would need to be many more trucks relatively speaking – the operation, to be economically viable, is essentially the same. Note the sections on ‘Public Safety’ and ‘Road Deterioration and Regional Costs’ in the blog here: https://www.fractracker.org/2014/09/truck-counts/ … also wait for the stock response “it’s different here, we’re better regulated etc.” (from those interested parties that are now circling around and getting excited).

        As the matter is now being leveraged as one of national importance (energy security/independence and such nonsense) local objections will get routinely overridden. This implies that there is every intention of scaling these operations up to their full blown potential. So – trucks, trucks and more trucks!

        • Trucks, trucks, trucks, Philip! Deal with it. Offsetting more trucks in the neighborhood for the months that the project takes will be fewer deaths due to fuel poverty, cleaner air from less coal usage, greater energy security, less reliance on foreign imports, tens of thousands of good paying jobs, and more growth for the country. So sob away about your trucks my good friend!

        • The stock respose, “It’s different here. We’re better regulated is wearing very thin. Cuadrilla’s Roseacre Wood site was rejected on traffic and highway safety grounds by LCC Planners, elected LCC Councillors AND Wendy McKay, the Planning Inspector at the recent five and a half week Public Inquiry.Yet the Secretary of State, who has never visited the site and refers to the TWO week Public Inquiry is still saying he is “minded to approve Roseacre Wood.” It looks like rather than Gold Standard Regulations the government is still hell bent on “Giving the fracking industry it’s ‘asks’.”as George Osborne promised.

          • Yes, ‘we’re better regulated’ is another mantra to be wary of. Worse according to two expert accounts I’ve seen. Ask for proof whenever you hear that line.

            Get the industry or government to pay for any road strengthening/widening where necessary.
            … when something isn’t called for regionally they cannot expect the locals to foot those bills surely.

  4. The government will not reply to this. You best get your charity boxes out and start raising funds to bring any further action. FoE have no friends when it comes to actual hard cash being put up. My side has bags of cash and in the capitalist country that you live in that is all that matters. Keep supporting Corbyn though, we are loving the free ride.

    • Must be chucking out time, first we had mr m, now mr capitalism (frick and frack? funny how the pro fracking troll farm agents claim they are capitalists, and only then when it suits them. Perhaps that only works when the money is someone elses and soon the debt collectors will come kicking at your door). Well it seems the frack shirts (did i spell that right?) are out and blinking in the sunlight. And where did that cash come from? Been trawling the bottom of those alpine lakes again? i dont think its bags of cash you have…..and enjoy the ride……right up until the abattoir doors open.

    • No point just trading insults with these guys Phil. They’re just getting punch drunk now. Save your energy – plain facts are enough, they don’t like those and just trip themselves up with ridiculously transparent evasions..

      I’m no Corbyn supporter myself but what is evident here is the sacrifice that will be made soon with a part of England to the thin end of the Fracking wedge. When British people wake up to the fact that this industry is the opposite of clean and that the government has been duped by powerful (and powerfully misguided) lobbyists the reaction will be huge, while these cackling maniacs will be popping corks on the champagne bottles thinking (as their mindsets indicate here) what a pushover little England has been – with Brexit making it open season for the corporate scavengers – this will almost guarantee a Corbyn ascendancy. I predict that Theresa may will be ground down by Brexit then crushed be reactions to this sort of thing.

      These guys are only interested in the bonanza phase of fracking – the boom is over in the States and the life span of the wells is limited.
      http://www.bloomberg.com/news/articles/2015-04-22/half-of-u-s-fracking-companies-will-be-dead-or-sold-this-year
      The vultures are circling.

    • ‘My side has bags of cash’

      Maybe you need to have a peep at AJ Lucas and I gas shares over the last few years. You may also want to consider what effects on investment and profit the global price of oil is having on the US shale gas industry and how that reflects on a more expensive UK industry.
      Ineos have been using gas price figures from years ago when prices were high to put forward the economic argument. Why would that be do you think? You may find this a tricky question so I will answer it for you. It is because at today’s prices UK shale gas could not make profit.

      Most shrewd businessmen don’t think buying something for £1.50 and then selling it for £1 is a good investment.

      Your bags are full of holes and are haemorrhaging investors money fast.

      You could try bunging the holes with bull shit. You would need an awful lot. Ask your friends if they can help out.

      First shale gas fracking applications 2010. Now 2016. Six years no gas. If you are looking for an extremely long investment with negative returns, hop on board.

      • Well put. Judging by temperaments on display they’ll soon get bored. I worked for University in a country manor location a while back. The permissions to strengthen the access road for heavy trucking only took 10 years.

  5. I really don’t know about the arcana of planning law. But I do know that Friends of the Earth consider, as I do, that climate change from CO2 is one our most pressing issues. Disappointed that this issue has been entirely absent in the report and the comments

    • I agree completely – and how the SoS could declare that the projects had no significance in terms of climate change was shocking, particularly when you consider climate change/GHGs is a material planning consideration and the comments from the CCC that the entire GHG emissions and implications should be taken into account when considering any project. Plus the Infrastructure Act specifically states carbon budgets as determined by the CCC must be taken into account.

    • This issue clearly not being dealt with – as a ‘material planning consideration’ – with any seriousness.

      Methane – CH4 is a far more powerful forcing agent (than CO2) when it comes to GHG’s and the leakiness of well sites, from the drilling stage onward, is become well documented now – the methane fingerprints of shale gas sites all over the States is quite alarming. Newer better remote sensors are being developed also (for satellites) and it looks like this case will be irrefutable very soon… shale drilling is proving to be one of the worst offenders. This makes a mockery of any commitment to the 2020 carbon targets (Britain is drifting well off target already), not to mention our friend halfpenny’s ‘cleaner air’ mythology. The Radio 4 documentary on the weekend was interesting File on Four ‘Changing Tides’ – querying the weakness in the UK’s renewable energy promises: http://www.bbc.co.uk/programmes/b07z45x2 (available on iPlayer in the UK)

      CO2 is really a downstream byproduct of the burning of natural gas and should come into and end-to-end audit of the total GHG budget for this industry, but it is not a primary concern as a polluting emission, as methane is, for any fossil fuel (coal/oil/gas) from the extraction, production and transport stages.

      • Technical clarification please – how does substituting one form of methane (imported LNG / Troll Norwegian / UK HPHT North Sea) for another such as UK onshore shale gas make a material difference to climate change. Shale gas if allowed has to be developed as a substitute for another form of gas; the total usage of methane is to stay neutral or decline. Or did I misunderstand one of the “tests” set by the CCC?

        • My point is about unwanted emissions from the proposed schemes (not about burning methane as a fuel generally) i.e. about the leakiness of the whole fracking process: a) from rogue emissions and venting (during and after) the drilling process; from cement and casing failures; from pressure release mechanisms including flaring (with incomplete combustion) and from leaky storage and pipeline systems – tanks, joints, valves etc … and b) from methane migration driving so much pressure into the ground forces methane and associated noxious fumes and chemicals in all kind of directions away from the well site itself – and the leaks can end up not just in water tables but traveling through fissures in the ground to distant parts (and beyond) of the several square kilometer area that the underground well shafts extend to. No three dimensional survey of the geology will tell you where all the fissures and anomalies are and the subsurface layers are never as nicely behaved as the mining engineers would have you believe (with their perfect layer cake models)…. and c) from accidents and disasters – there’s an example below.

          But its quite easy to see methane leaks in real time with infrared cameras these days and I’m guessing any drilling in the UK will have eagle eyes trained upon it, even from a distance. Official inspections (particularly when self monitoring) can be conveniently timed to miss the intermittent (and sometimes deliberate) emissions and drilling companies in the US typically wriggle out of continuous monitoring by saying it’s too expensive.

          As a source of greenhouse gas emissions shale fracking wells are far worse than conventional wells. It’s a dirty industry and should be treated as such regarding carbon targets.

          A couple of informative links: http://blogs.edf.org/energyexchange/2015/12/10/infrared-camera-reveals-huge-wafting-cloud-of-methane-over-californias-aliso-canyon/ and http://dotearth.blogs.nytimes.com/2015/01/05/two-ways-infrared-cameras-have-boosted-the-case-for-e-p-a-rules-cutting-methane-leaks/?_r=0
          … and a big problem near LA (after halfpenny’s assurances that Los Angeles and gas-fracking have co-existed without any serious impacts) : https://www.youtube.com/watch?v=6iyfjl1FMeU

          Don’t get me started on wast water disposal !!

          • Hi Philip,

            Better stick to your day job. Shale gas with modern completions is no different to what you would call conventional gas wells for emissions. Imported gas will have greater emissions, particularly LNG. And now that from 2017 we will be importing US shale gas how does that have lower emissions than UK shale gas? The treatment and transportation process (downstream of the wellhead) is no different for any type of gas well with the exception LNG.

            And your comment “from methane migration driving so much pressure into the ground forces methane and associated noxious fumes and chemicals in all kind of directions away from the well site itself – and the leaks can end up not just in water tables but traveling through fissures in the ground to distant parts (and beyond) of the several square kilometer area that the underground well shafts extend to” demonstrates how little you understand about this process sub surface.

            The “informative links” may well demonstrate the capabilities of IR but the foremer and the latter links have nothing to do with shale gas – didn’t we go through this several times before on this BB? Porter Ranch is a natural gas storage operation in an old oil field. The escaping methane was from a failed gas injection well. If you are worried about this we have several of these storage operations in UK (the biggest is Rough, offshore) including onshore. One of our biggest problems is that we have so little gas storage and need a lot more quickly. But perhaps you would like to see the little storage we do have shut down? I will interested to learn what your alternative is?

            • As your day job seems to be drilling operations I can understand your interests and defensive stance here. But guess what? the public is concerned about (and has to live with) the whole end to end process – drilling, extraction, storage, distribution. Porter ranch is directly involved in this industry and you’re trying to pretend it isn’t. You may evade problems I guess because much of these problems arise long after the drilling businesses have taken the money and ran. https://www.kcet.org/redefine/7-things-you-need-to-know-about-the-porter-ranch-gas-leak.

              The nose bleeds, the nausea and dizziness and so on, reported by residents are exactly the things reported by residents all over the place – since fracking came to their neighborhoods – and Chesapeake has been one of the biggest names mentioned. It’s no good saying on the one hand that this is the same fracking that has a proven track record of 60 years then on the other saying ‘oh yes those more recent issues are now behind us and will be dealt with safely and cleanly now’.

              My first argument was simple – much leakage comes from new wells and pad sites. Why create more (putting more methane in the atmosphere and raise more health and safety worries for people and water and so forth) when there’s a current glut and prices are cheap? There are a variety of reserves and sources but our government has removed tax incentives from existing supply lines, and renewable development. The methane problem (and related climate change issues) is real and growing. There is now a thin but growing upper atmosphere methane veil growing over the entire northern hemisphere. Responsible governments have to start somewhere and take this seriously. Scotland has set a great example to date. Note that the KCET report determines a 4% leakage overall from the shale gas industry, other studies put it nearer to 6%. That makes it effectively a front runner for dirtiest industry.

              The truth is catching up. Shale propagandists are running out of cover-up stories. Why some governments have tried to put so many eggs in that basket and why nailing the culprits has proved so elusive is excellently dissected in this documentary: https://vimeo.com/60999259

            • Philip,

              No day job. I am retired. When I was working I didn’t have time to blog, I worked long hard days, often months on end on 24 hour call, 7 days a week. But the money was good so I retired at 52. It was worth it.

              I assume from your last post that you are not just anti shale but anti industry. A couple of links below to help you understand that the oil and gas industry is not the only contributor to atmospheric methane. Perhaps you should give up rice and persuade billions of Asians to do the same?

              http://icp.giss.nasa.gov/education/methane/intro/cycle.html

              http://www.sciencemag.org/news/2016/03/soviet-collapse-might-explain-mysterious-trend-global-methane-emissions

              And being so anti oil and gas perhaps you should also look for alternatives to the items on the following link?:

              http://www.oilandgasinfo.ca/oil-gas-you/products/

              I understand people not wanting a shale gas site near them however I do not understand how you all propose to live without hydrocarbons? And you will know that peak oil, peak gas, peak uunconventionals are many years away still. There will be no drop in global demand until the population peaks and India, China etc. have established middle classes and their aspirations are satisfied.

              Scotland has set a great example of what? You clearly don’t understand what the SNP is about. Scotland would be dead in the water without England and our significantly greater population – and our nuclear and fossil fuel power stations. If they had gone independent where would they be today – in deep trouble and begging for bail out.

              Do you believe what KCET tells you?

  6. It is the Democratic rights of FoE and the locals to appeal the Minister decision so be it. It will represent a precedence. But the cost will be alot but that Ecoelectricity millionaire will surely have the cash to fund it.

  7. My understanding of JR is that the company will be allowed to proceed while the JR being considered and will only have to halt the work if the jr decision against their favour. So the legal challenge may have minimum delay on the work.

    • Hello TW – you are correct. You actually need an injection to stop the company from operating whilst a JR is being considered. However, in general most do not – as they do so at risk.

      • Thanks KT for the reply. Just wondering if this is why PNRAG took a different route of legal challenge. This is interesting because JR may be an easier path to argue.

    • Considering their friends in high places the companies are probably quite confident. However they will have to be pretty certain that the decision would be in their favour before committing to setting up all the infrastructure that a site would involve. It would be not only very expensive but also highly embarrassing if the court did tell them to abandon the site. Maybe the courts can’t be bought quite so easily.

      • Hello again TW – PNRAG are appealing against SoS decision which is why they are following this route. Apologies for the predictive text error in my original response – it was of course injunction rather than injection – note to me to read things through more carefully before posting. An injection to stop a company operating sounds (unintentionally) rather sinister!!

  8. Obviously it is highly unlikely that minister would reverse the government decision. So the appeal is definitely on. But the JR case og Third Energy in Nov will be precedent and maybe PNRAG should wait for this decision before taking this costly action. If the decision is negative for Third Energy then it will increase PNRAG chance by multiple folds.

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