A High Court judge has rejected the legal challenge against planning permission to frack in North Yorkshire.
In a judgement issued this morning, Mrs Justice Lang upheld the consent for Third Energy to frack its existing KM8 well at Kirby Misperton in Ryedale.
She dismissed claims by Friends of the Earth and Frack Free Ryedale that the decision by North Yorkshire County Council had been unlawful. See DrillOrDrop’s breaking news
The basis of the case
The case, heard over a day and a half last month, centred on two arguments by the claimants.
- The council should have taken into account greenhouse gases that would be emitted by burning shale gas from the Kirby Misperton well site at the nearby Knapton Generating Station.
- The council was wrong to advise its elected members that they could not legally require Third Energy to pay a financial bond to put right any damage.
North Yorkshire County Council argued in response:
- It was entitled not to consider the effects of emissions from burning gas at Knapton because this was off the site for which planning permission was being sought, the level of emission could not be calculated but anyway the emissions would not exceed permitted levels.
- It was entitled to decide not to require a financial bond and to conclude that the cost of restoration and aftercare would be dealt with adequately by planning conditions
More detail on greenhouse gas emissions
Friends of the Earth and Frack Free Ryedale argued that the Environmental Statement (ES) which accompanied the application was flawed because it did not include the impacts of burning gas at Knapton.
But Justice Lang ruled that the ES was adequate. She said:
“The council was entitled in the exercise of its judgement to conclude that an assessment of the environmental impacts of burning gas from KMA well site at Knapton was not required.”
She gave the following reasons:
- The fracking application did not include any development at Knapton – which already had planning permission and environmental permits
- Third Energy was not seeking an increase in capacity at Knapton
- Any gas burned at Knapton would be within the limits permitted for the station
- The gas would be indistinguishable from other well sites and so the environmental impact could not be separately quantified
- Natural England and the Environment Agency – two other regulators on oil and gas operations – had not asked for the impacts to be considered
- The Scoping Opinion – what the council thought should be included in the ES – did not require Third Energy to assess greenhouse gas emissions from Knapton
Justice Lang said:
“I am satisfied that the council was well aware of these issues and took them into account when resolving to grant planning permission.”
“I find it impossible to conclude that the officers failed to guide the members sufficiently or misled them on a matter essential to their decision.”
Friends of the Earth said today that climate change and greenhouse gas emissions had been “barely discussed” by councillors at the planning meeting in May.
But Frack Free Ryedale said it drew some consolation from the judge’s comment on energy choices when she said:
“The real thrust of the objections was that energy requirements ought to be met by other, less environmentally damaging means than gas production and a gas-fuelled electricity generating station. This was essentially a judgement for the committee to make.”
More details on the financial bond
Friends of the Earth and Frack Free Ryedale argued that the planning officer’s report to the planning committee wrongly advised members that it was not legally possible to require Third Energy to provide a financial bond.
Justice Lang said in her judgement:
“I accept the council’s submission that the officer was entitled to advise the committee that this was not an exceptional case which would justify a financial guarantee.
“In giving that advice, the officer also rightly reviewed the protection afforded by other regulatory regimes, including the OGA [Oil and Gas Authority], Environment Agency and the Health and Safety Executive, and proposed conditions to achieve financial protection in another way.
“In my view, the terms of the conditions afford a considerable degree of protection to residents. Despite the claimants’ submission that the protection was too short-lived it was apparent that the conditions extend beyond mere restoration to a programme of after-care.
“In my judgement, the council acted lawfully in the exercise of its discretion in imposing these conditions and deciding not to seek a financial bond.”
The judge concluded:
“The Claimants’ grounds were arguable, and so permission [for the judicial review] is granted but the substantive claim for judicial review is dismissed.”