Legal

Breaking: Judge gives go-ahead for Third Energy’s North Yorkshire fracking site

royal-courts-of-justice

In the past few minutes a High Court judge has backed plans by Third Energy to frack for shale gas at Kirby Misperton in North Yorkshire.

Mrs Justice Lang rejected a legal challenge to the decision by North Yorkshire County Council to grant planning permission in May this year.

The ruling could mean Kirby Misperton will see the first use of high volume hydraulic fracturing in the UK since 2011.

Friends of the Earth and the campaign group, Frack Free Ryedale, had argued that the council had acted unlawfully because it failed to take account of climate change impacts or protect the area from long-term damage.

During a two-day hearing last month (22-23 November), the two groups said the council had underestimated greenhouse gas emissions resulting from the project.

Gas from well is to be burned at the nearby Knapton power station to generate electricity.  Barrister for the claimants, David Wolfe QC, argued that the council should have taken account of emissions from the power station, as well as from the well operations.

He also argued that the council had misdirected itself in law by concluding that it could not require Third Energy to pay a financial bond to cover the costs of site restoration or damage.

But in her judgement given this morning Justice Lang rejected the grounds for the judicial review.

She supported the county council’s argument that bonds should be required only in exceptional circumstances and that the development did not include emissions from the power station.

The council’s barrister, Sasha White QC had argued that emissions from the power station were controlled by other permissions and regulatory regimes.

Justice Lang said in her judgement:

“In my view, the terms of the conditions [of the planning permission] afford a considerable degree of protection to residents. Despite the Claimants’ submission that the protection we too short-lived, it was apparent that the conditions extend beyond mere restoration to a programme of after care, in accordance with the PPG [planning practice guidance]”

Costs of £10,000 were awarded against Friends of the Earth and £5,000 jointly against Rev Jackie Cray and David Davis, of Frack Free Ryedale.

Campaigners’ reaction

kmjr2

Rev Jackie Cray and David Davis, of Frack Free Ryedale, joint claimants in the judicial review

Third Energy’s plan to frack its existing KM8 well was opposed by Ryedale District Council, every Ryedale town council, 15 parish councils, Flamingo Land, Yorkshire Wildlife Trust, the Castle Howard estate and more than 4,300 individuals. The county council’s planning committee voted by seven to four in favour of the scheme.

David Davis, one of the claimants for Frack Free Ryedale, said this morning:

“We respect Mrs Justice Lang’s decision whose duty was to carefully interpret the law as it stands today. Our greatest disappointment is with the government, our own MP, and an industry who are conspiring to force fracking on unwilling communities with the threat of overruling any councils who refuse planning permission. 

 “Our own County Council failed to respect residents wishes and those of the District Council, five town councils and 14 parish councils in Ryedale who objected, and did not even have the courage to use the authority’s own draft Minerals and Waste Plan as a basis to throw out this application.

“Third Energy will now press ahead with its plans at Kirby Misperton. Sadly, this decision will open the floodgates to other fracking companies such as INEOS who together have plans for more than 14,000 wells in Ryedale alone. Large areas of Yorkshire, the North and the Midlands are covered by Petroleum Exploration and Development licences for fracking which if exploited will lead to the widespread industrialisation of our countryside.”

Frack Free Ryedale said it drew some comfort from Justice Lang’s comment in her judgement that it was the responsibility of the Council’s planning committee to reach an independent view on whether “energy requirements ought to be met by other, less environmentally damaging means than gas production and a gas-fuelled electricity generating station” Frack Free Ryedale statement

Reverend Jackie Cray, the other claimant for FFR, said:

“I’m obviously disappointed in the verdict but it doesn’t end here. There is no support in North Yorkshire for this risky industry.”

Rev Cray, who lives about a quarter of a mile from the KM8 well, said said local people would not give up their fight.

“We will continue to campaign on behalf of local communities for the sake of our children and their children’s health and well-being, and the long term prosperity of our area. We are not prepared for Ryedale to become a sacrifice zone for the sake of industry greed.”

Donna Hume, Friends of the Earth campaigner, said:

“The high court has ruled that fracking can go ahead in beautiful Yorkshire, and we must rise to this latest challenge.

“The judge found that North Yorkshire Councillors had assessed the impacts of climate change. But we know that climate change was barely mentioned at that crucial council meeting where the decision to allow fracking was taken, and more damningly, that councillors didn’t have the information about the total carbon emissions produced from the fracking project.

She added that Third Energy, 97% owned by Barclays, could expect resistance to its plans:

“Residents have said they will continue to do everything they can to peacefully prevent Barclays’ owned Third Energy from fracking, and we will be standing with them.”

North Yorkshire County Council reaction

A statement from the council this morning said:

“North Yorkshire County Council is grateful for the judgement of the High Court, which confirms the planning committee gave proper regard to all material planning considerations before approving the application by Third Energy to undertake fracking for shale gas in the vicinity of Kirby Misperton.

“The County Council has not sought to bring fracking to North Yorkshire. Having received this application, we had a responsibility to determine it and to apply national and local policies. We followed a statutory process, and the High Court has found that we followed it correctly and has rejected the issues raised by Friends of the Earth.

“We have a statutory duty to deal with such issues, and are now focusing on a new draft Minerals and Waste Joint Plan for York and North Yorkshire, which has been produced by the County Council with City of York Council and the North York Moors National Park Authority.

“The plan will put in place robust measures to  balance the interests of the fracking industry with those of residents, businesses and the environment in areas where planning applications may be made.

“It adopts a raft of measures that include an extended buffer zone to protect residential locations as well as environmentally important places, such as Areas of Outstanding Natural Beauty, nature conservation areas and important historic sites.

“We have been encouraging people and organisations to make representations on the draft by tomorrow, 21 December.

“When given final approval, the plan will become a key reference for planning decisions for development for the next 15 years, including hydraulic fracturing for shale gas.”

Third Energy reaction

A statement from Third Energy said:

“Third Energy is pleased that the court has found that North Yorkshire County Council acted properly in granting planning permission for test fracs at the existing KM8 well in Ryedale.  The council set 40 conditions to the grant of planning permission which the company is well on its way to satisfying. It is worth remembering that we are nearly two years into a planning application process for a proposed operation that would take less than three months to complete.”

The company’s chief executive, Rasik Valand, added:

“The permission places a great obligation on Third Energy to prove that we can carry out the test fracs in the same safe, discreet and environmentally sensitive way that we have conducted our gas exploration and energy generation activities over the past two decades.

“We are confident that we will prove to the local community that their elected representatives were right to grant this permission.  We look forward to the results of the test fracs which will help establish whether gas can be produced from deeper and tighter rock formations at the Kirby Misperton site.”

More DrillOrDrop reports

Details on the judicial review ruling

What the judge said about allowing fracking at Kirby Misperton (20/12/2016)

Day 1 of the judicial review

High Court fracking challenge told council “underestimated” climate impact of Third Energy plans

Council defends decision to approve North Yorkshire fracking plans

Day 2 of the judicial review

Judgement reserved in High Court challenge over fracking in North Yorkshire


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

104 replies »

    • Wow! Who could have ever seen this coming??? That the court wouldn’t believe the hype and propaganda of radical extremists – what a big surprise! I do wonder how much it cost these groups. Hopefully a lot! Will they be responsible for Third Energy’s court costs? I hope so. And I sincerely hope that these groups keep challenging every positive ruling for industry. You can do it fellas!

      • Peeny – what a good idea – tie them up in legal knots with every application. Who’d have thought of that one without your help?

        • John, Why aren’t you personally bringing these challenges? I think it’s a stupendous idea, and you obviously agree. Now that there are dozens of these approvals on the horizons, you will be a busy bee won’t you? Hire really good, expensive lawyers too.

          It won’t impact timing for most of these, but you can keep the lawyers gainfully employed and I, for one, will immensely enjoy watching you spend your money on the endeavor!

          Best of luck!

  1. And there we have it once again, local opposition and feeling means nothing to government, any objection is ignored or over ruled, democracy cannot and has not survived in this betrayal of every person in UK.

    “Third Energy’s plan to frack its existing KM8 well was opposed by Ryedale District Council, every Ryedale town council, 15 parish councils, Flamingo Land, Yorkshire Wildlife Trust, the Castle Howard estate and more than 4,300 individuals. The county council’s planning committee voted by seven to four in favour of the scheme.”

    Perhaps these county councilors will be brought to task for this betrayal of their constituents wishes.

    Opposition will continue against the fracking industries first drill bite into our treasured ecology, despoiling and fouling our beautiful country in the process.

    Reason? We have been left no other choice.

    This is not the first time the people of this country have been under attack and perhaps the added betrayal by our own elected representatives puts a rather different spin on this new attack.

    • “Ben Dean, from Cheshire, got the go ahead for a High Court challenge to the decision to allow more time for shale gas drilling near his home. Mrs Justice Lang, at the Royal Courts of Justice, gave permission for Mr Dean to bring a judicial review of the decision. She also capped Mr Dean’s costs at £5,000 if he lost. ”

      Thje anti’s loved this, democracy at work, independent Judiciary…..

      “In the past few minutes a High Court judge has backed plans by Third Energy to frack for shale gas at Kirby Misperton in North Yorkshire. Mrs Justice Lang rejected a legal challenge to the decision by North Yorkshire County Council to grant planning permission in May this year.”

      The anti’s don’t like this, undemocratic, Judiciary in the lap of the Government and the fracking companies…..

      Spot the similarity – same Judge in both cases.

      Hopefully this has cost FOE a bunch of money and they will think twice about ridiculous JRs in the future. Does not bode well for some other legal challenges under way in Lancashire (at least not for the or the appellants).

        • I live in Lancashire, above and near outcropping Bowland Shale. But where I live or you live is not relevant to what the Planning Officer, the Planning Committee and now a Judicial Review High Court Judge has ruled.

        • Why would anyone need to worry about fracking occurring near their home, any more than than any other industrial development. A five inch drill passing nearly a mile under your house, not really a major issue. Near my home they are just starting building 500 new homes on farmland. I don’t like it much but can see it’s in the interests of the town as a whole. Same with fracking. Yes come and drill especially if the local people going to benefit from a share of the revenue. Fret not.

          • Mark.
            ‘Near my home they are just starting building 500 new homes on farmland’
            When these properties are put on the market, solicitors do land searches. Currently, solicitors use Groundsure in licensed areas for ‘existing and proposed: oil and gas sites including fracking’ If any such development is found, they are obliged to contact the mortgage provider to ensure they are in agreement to release the funds at the proposed level or at all.

            In fact a colleague of mine encountered this search result when buying their house and was advised by the solicitor not to continue with the purchase. I don’t think the developer(s) of these houses would be too impressed by a local fracking site. It could affect sale price and indeed ability to sell.

            ‘Why would anyone need to worry about fracking occurring near their home’ because houses currently next to proposed fracking sites are being sold at reduced prices or not selling at all. This is affecting people’s ability to move and also could affect their future wealth to enable them to fund their needs in later life. Devaluation of property will mean older residents not being able to contribute to their care needs resulting in an increased burden on the state (aka the taxpayer) for social care, now and in the future.

    • Ho Ho Ho phil. Merry Christmas!

      It’s democracy sure enough. Just not democracy that you favor my good man!

      The votes of millions who voted the Conservatives into power are being heard, finally. Suck it up big fella!

  2. Calm down Phil. We all live in a country where opposition to any local plan has to be based on certain criteria. I can object to all sorts of things within my locality but if I do so I receive clear instruction on what grounds objections will be considered. Elected representatives have to follow the same criteria, and unless they do, can open up huge litigation costs against the tax payer. They should not, and can not, simply obey their constituents wishes.
    The same laws and regulations apply to all of us, and when they do not you will see central government step in.

    This was a legal decision, and always likely to be ruled as it has. Your friends seem very keen to use the law. Well, there has to be a case.

    • Then how come there was a 7-4 vote Martin? According to your logic a vote woulsn’t count at all or it would have to be 11-0 if the local planners are simply levers of state policy. .. (different Phil)

      • Easy answer – some Councillors are more interested in getting re-elected, others are more interested in making the right decision under planning law and saving the council tax payers money (losing appeals / JRs…)

          • If the result went the other way (I assume you mean Councillors voted to refuse it) then Third Energy would most likely have appealed and probably won at appeal. The County Council would have had to defend their refusal (difficult if the Planning Officer recommended approval) and would have had to pay costs if they lost (likely). All under the same planning law.

        • “Hopefully this has cost FOE a bunch of money and they will think twice about ridiculous JRs in the future. Does not bode well for some other legal challenges under way in Lancashire (at least not for the or the appellants).”

          “it is much simpler than you believe, there is no need for bribery and corruption” this wording says a lot, it may or may not be needed to use bribery and corruption, but would the industry use it? Has the industry used it? This sentence certainly does not rule out the possibility……

          “And that would have cost the County Council a lot. Look at Lancashire & Cuadrilla. So in effect what the Council were doing was following planning law and saving the council tax payers a lot of money (unlike Lancashire who cost us a lot of money).”

          Fascinating attitude, another hint at dissuasion for the people of this country to use the law to get justice, by saying this it is clear the industry wants to crush all legal opposition by dissuading them from any recourse to the law. Intimidation by legal means, apparently for this industry the means justifies the end, i believe there is another name for that attitude, we have seen it before, and it does not belong in this fair and pleasant land.

          It is more telling to show that his top down legal process has been manipulated by government is to exclude any reference to peoples personal health and safety, to exclude any reference to the dire effects on climate change, to ignore any reference to the potential danger to drinking water, air and the environment and to reduce everything to some nameless risk ‘by other bodies’

          Contrary to what some pro fracking industry supporters seem to think in these posts, democracy is not the exclusive preserve of government, private companies, lobbying power bases or unelected oligarchies, it is the right of every person in this country.
          .
          The majority of people do not want fracking in our green and pleasant land.

          To exclude legal representation is a crime, for an unelected government to bypass the legal system and over rule decisions is unlawful.

          For private company for profit industry to impose a fracking process that has caused environmental disaster across the world is unacceptable.

          Regardless of any other consideration, it really is as simple as that.

          • Phil C – you are deluding yourself if you think the system that you don’t like / don’t agree with is specific to shale gas. It applies to all planning applications, any industry. Except onshore wind turbines thankfully. The reason that localism works with onshore wind is that the Government listened to people who lobbied them. So start lobbying against shale gas, elect a different party who will bring about the changes you wish for. Vote Green, vote FOE, vote Lib Dem, vote Corbyn, vote for the anti shale candidates that pop up such as the one in the Fylde who got hammered by the Conservatives. Go into politics yourself – lead by example….

            • Paul – whilst I agree that the planning system is basically a set of rules to which the game has to be played, I disagree that voting in a particular candidate is the key to effecting change – surely the planning system is *supposed* to be politically agnostic. Are you suggesting it isn’t?

          • Yes of course politics, thats the answer isnt it!! Why didnt i think of that? but hang on a bit? Oh, yes thats right, i did think of that didnt i? And do you know the sort of people i found there? they were just like the pro frackers and the Yorkshire county councilors here, self satisfied and self serving, out for only themselves, parasitic upon the rest of society drawing massive salaries and fiddling expense accounts
            Not everyone, however, i met some great people, but they were surrounded and marginalised by the others and were forced into doubtful compromise of their original motivations.
            I became sickened and saw it was just primarily jobs for the boys from other power bases, nothing there for the ordinary law abiding person in the street. I turned my back on them and walked away, i realised that politics isnt the answer, you have to be a player in the corruption game to get anywhere. something i would not do.

  3. As all eyes will be on this it would be good to have full disclosure of ‘incentives’ offered local officials and planning committee members in the interests of transparency.

    Inducements should not be hard to spot – usually packaged up as ‘community benefit’ schemes and/or projects involving promises of payouts or stipend’s or future shares, employment or directorships of the parent company or spinoff businesses.

    It would be hard to imagine such a brazen defiance of local wishes without such behind-the-scenes manoeuvres.

    Any good sleuths around?

    • If i ever have the need to do so, I try to guide by example, actually we dont need leaders, the pack instinct of abdication of responsibility and subservience to a pack leader is inoperative in anyone who wakes up to it, Many are awake and many more are waking up to the reality of our situation. The best leader would be, if we do have to have such a thing, someone who enables others to follow their best truest path to peace and freedom and hardly be noticed for doing so. No massive salary or expense account required. Such a social organisation is not attributable or answerable to any opinion of this partial poisonous industry or its supporters or indeed any over bearing notion that might is right and all must bow down to the over blown ego aggressors.
      weoppose you because we have to, we didnt ask for this, you impose this horror on us, we would not be worth anything if we were to give in to the poisonous industry and hope they will have our best interests at heart.
      Read any of these pro fracking posts and you will see the only best interests they have at heart are their own profit and tax avoidance in offshore tax havens.

  4. Philip P – it is much simpler than you believe, there is no need for bribery and corruption. The Council followed planning law, the planning officer recommended approval, the Councillors voted to approve the application. They know that if they had refused it they would have lost at appeal, and or JR. And that would have cost the County Council a lot. Look at Lancashire & Cuadrilla. So in effect what the Council were doing was following planning law and saving the council tax payers a lot of money (unlike Lancashire who cost us a lot of money).

    Local opinion (localism) does not precede planning law.

    • You’re implying that the judiciary has no independence here and that outcomes are predetermined. That makes judges in collusion with the governing or master plan if they do not advise clients that the outcome is non contestable.

      • I am saying the opposite – that the Judiciary is independent – and that they uphold the Law – which in this case is Planning Law, not Friends of the Earth law.

        • Assuming then that the lawyers and judges know at least as much about the law as you do then why do they not advise clients that there is no case? And why have leading politicians stated that local democracy and planning will have a right of determination (re. fracking?

          • You need to ask the “leading politicians”, not me. Lawyers – ha ha. They make money win or lose, they don’t care, and will usually always recommend an appeal / JR etc. – unless they are on a no win no fee basis. Judges – they assess the cases put forward by the two opposing parties.

            • Thanks Paul… I think fees should be reversed if it is shown that SoS is acting against (recorded) statements in parliament about this government not being a dictatorship and that locals would have their say etc.

  5. Not impressed by the legal arguments because fracking is not a typical or even normal planning application; the environmental, amenity, social and health consequences are seriously damaging, short-term and long-term, even more so given the evidence we already have about climate change. These are sufficient grounds for setting a precedent. Good legal process and justice should always make provision for that.
    In actual fact the main motive is political, as it is with the NHS, to break the will of the people by giving the message that nothing is sacrosanct: your homes, your land, your peace, your health, your landscape, your communities, common property and amenities.
    There is plenty of information online for everyone to inform themselves from similar issues and campaigns worldwide and arguments and cases, for and against. The least we all should do is to make use of it so that we are truly informed and making our own judgement.

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