North Yorkshire County Council has been defending its approval of Third Energy’s plans to frack at Kirby Misperton in Ryedale.
The council was appearing at the High Court in London where opponents of the scheme are seeking a judicial review.
This morning, the court heard the case by Friends of the Earth and Frack Free Ryedale that the decision was unlawful. DrillOrDrop report
Their barrister, David Wolfe, argued that the council had not taken account of greenhouse gas emissions from the Knapton Generating Station, where shale gas from Kirby Misperton would be burnt to generate electricity.
He also said the council had failed to secure long-term financial protection against environmental damage by not requiring Third Energy to pay a bond.
Dr Wolfe argued that conditions imposed by the council on restoration did not satisfy objectors, They were concerned about what might happen beyond the five years of aftercare, he said.
He told the court that before the planning committee meeting the council’s head of planning had said a financial bond was possible and was a good idea.
But councillors making the decision on the application were advised by council officers that a bond could not be required for the Third Energy application. They were also told:
“Nor can such a mechanism be used in the circumstances as called for by those opposing the proposed development.”
Dr Wolfe said the council had received legal advice on the issue but had refused to disclose it.
Sasha White QC, barrister for North Yorkshire County Council, said the councillors had been advised that financial bonds should be required only in exceptional circumstances.
“This was not a situation where a bond could be required from the applicant”.
He said the council needed to rely on other regulatory agencies. Councillors had been told that the local planning authority: “should be assured that the issues that are the responsibility of other regulatory bodies will be suitably addressed”.
The judge, Mrs Justice Lang, asked whether other regulators would deal with a situation where a company went out of business and was not able to cover the costs of a problem.
Mr White replied “absolutely”.
He said an environmental permit could be surrendered only when the Environment Agency said so and when there was no risk to people or the environment because of activities on the site.
“The EA are the statutory authority tasked with giving these environmental permits. They are fully aware of the environmental consequences.”
Mr White added that the Oil and Gas Authority assessed the financial viability of a company when it applied for a licence and again when it applied to drill a well.
He said officers had addressed concerns of objectors by adding a financial commitment to condition 35 of the planning permission. This now stated:
“The approved restoration and aftercare measures shall provide any necessary financial commitment required by the applicant to secure the approved scheme and these arrangements shall be retained for the duration of the development programme and for a minimum of six (6) months from the cessation of any authorised works at the KM8 well site.”
Mr White said the level of financial commitment would be a planning judgement for the council and would depend on the detailed scheme for restoration that had not yet been determined.
Mrs Justice Lang replied: “This will not give anyone much comfort.”
The judge added that the application had been subjected to detailed scrutiny through a public consultation but there would be no scrutiny by the public of the documents, such as the detailed restoration scheme, submitted to satisfy the planning conditions.
Mr White replied:
“If this goes wrong the people in the firing line are my clients [North Yorkshire County Council]
“If Third Energy went bust and there were remediation or legacy issues the primary task would fall on my clients.”
Mr White also defended the charge by Friends of the Earth and Frack Free Ryedale that the council had not followed regulations on environmental statements by not accounting for greenhouse gas emissions from the Knapton Generating Station.
He said the campaign groups had not been clear about what they regarded as unlawful.
Councillors had not been misled, he added, because they understood the role of Knapton. The description in the application made it clear that the development did not include the power station.
Mr White said the local planning authority had never taken the view that the application should produce information on emissions from Knapton because the impacts of its operations had already been considered in other permissions or environmental permits.
“Nothing will be significantly affected by this development because Knapton is there. It is operating. It has an agreed capacity and has already been consented. Knapton can proceed, irrespective of what happens at KM8.
“Why would regulators require you to consider the effects of something that has already been allowed?
“It was a valid judgement that emissions from Knapton was dealt with by other controls and it was valid for the committee not to regard it as a material consideration.”
Mr White also told the court that data on predicted greenhouse gas emissions at Knapton was not available. He said Third Energy would make a commercial decision after testing on whether to produce gas from the well and only then would it know what the emissions at Knapton would be.
The case continues tomorrow with arguments from Third Energy, represented by Nathalie Lieven QC.