In a brief court hearing at 9.30 this morning, the High Court judge Sir Ian Dove dismissed two legal challenges to the ministerial approval of Cuadrilla’s plans for fracking at a site in Lancashire.
Sir Ian Dove ruled that the decision by the Communities’ Secretary, Sajid Javid, to grant planning permission for the site at Preston New Road, Little Plumpton, was lawful.
The challenges were brought by Preston New Road Action Group (PNRAG) and an individual anti-fracking campaigner, Gayzer Frackman.
The PNRAG challenge argued that Mr Javid had unlawfully and unfairly misinterpreted local and national planning policies. These polices had been used by Lancashire County Council as reasons for the refusal of planning permission for Preston New Road in June 2015.
Mr Frackman argued that Mr Javid’s decision was unlawful because it failed to take into account some greenhouse gas emissions from the site and gaps in shale gas regulation.
At the end of an 82-page ruling, Sir Ian concluded that all the grounds in the case made by the Preston New Road Action Group were arguable. But he dismissed them all because he said they were not substantiated.
He said the climate change ground of Mr Frackman’s challenge was arguable though not substantiated, while the other ground was not arguable.
Mr Javid granted planning permission for the Preston New Road site on 6 October 2016, following the recommendation of an inspector at a 19-day public inquiry.
The challenges and the judge’s response
Preston New Road Action Group
Ground 1: Misinterpretation of policy CS5 on landscape protection
What Mr Jarvid said? The Preston New Road fracking plans complied with Policy CS5 because they were of limited duration. Policy CS5 of the Joint Lancashire Minerals and Waste Development Framework Core Strategy seeks to develop criteria that would ensure that important features and landscapes were protected from harm and opportunities taken to enhance them.
What PNRAG said? The Secretary of State incorrectly interpreted CS5 because the policy seeks to protect landscapes against temporary, as well as long-lasting harm.
What the judge said? Policy CS5 set out strategic objectives to enable more detailed criteria to be developed for decision-taking. It was not designed to be applied literally.
“I am unable to accept that such a literal interpretation of the policy, and in particular the phrase “protected from harm”, represents how the policy should be interpreted and understood as a matter of law.”
The planning inspector correctly interpreted and applied the policy and there was no error in law.
Ground 2: Inconsistent conclusions on landscape protection
What Mr Javid said? He accepted the conclusion of the planning inspector that the Preston New Road scheme would “at least serve to conserve and protect Lancashire’s Landscape Character”.
What PNRAG said? The Inspector’s conclusion was inconsistent with her comments that:
“there are landscape impacts that would cause demonstrable harm which cannot be eliminated”
“it is hard to envisage any shale gas development that could be sited without a degree of conflict with that strategy”
“there would be an adverse impact upon a ‘valued’ landscape”
This inconsistency resulted in a legal error, that was adopted by Mr Javid.
What the judge said? “I am unable to accept that the inspector had reached unexplained and inconsistent conclusions” in her report.
“The ‘demonstrable harm which cannot be eliminated” is clearly a reference to the temporary harm to landscape character and visual effects which are set out in her detailed reasoning on these points, and drawn together in the paragraphs expressing her conclusions.
“In my view, the Inspector’s conclusions are clear, and in particular represent a careful distillation of the views which she sets out earlier in the report in relation to the landscape and visual effects of the proposal. I am therefore not satisfied that the first claimant has established any legal error in Ground 2 of the application.”
Ground 3: Unlawful interpretation of paragraph 109 of National Planning Policy Framework
What Mr Javid said? The Preston New Road scheme complied with paragraph 109 of the National Planning Policy Framework. This says:
“The planning system should contribute to and enhance the natural and local environment … by protecting and enhancing valued landscapes, geological conservation interests and soils”
What PNRAG said? Valued landscapes are to be protected from harmful development, even if it is temporary. The Inspector should have concluded that the development was in breach of policy in paragraph 109 because she had accepted that there would be an adverse impact upon the valued landscape.
What the judge said? Paragraph 109 is a broad, strategic objective for the planning system.
“I am quite satisfied that this policy of the Framework is very plainly setting out a high-level strategic objective for the whole of the planning system. The phrase “protecting and enhancing valued landscapes” is to be read and understood as a high-order strategic objective of the planning system as a whole.”
“I am unable to accept that paragraph 109 should be interpreted as providing that any harm, including temporary harm other than for a wholly insignificant or de minimis period, is a breach of this policy.”
Ground 5: Misinterpretation of planning policy DM2
What Mr Javid said? Preston New Road complied with policy DM2 of the Joint Lancashire Minerals and Waste Development Framework Core Strategy. This supports minerals operations where it can be demonstrated that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels. The policy also supports minerals developments that “make a positive contribution” to issues including the residential amenity of those living nearby.
What PNRAG said? Mr Javid, in adopting the inspector’s recommendation, failed to properly interpret policy DM2. Instead of assessing whether or not there was a positive contribution to the residential amenity of those living nearby, the inspector focussed instead on whether the outlook of any residential property would be affected to such an extent that “it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live.”
The inspector failed to apply the positive contribution test required by the policy and failed to provide any adequate reasons for the conclusions she reached.
What the judge said? Policy DM2 does not suggest that it is necessary to satisfy both the first and second parts in order for a development to be supported.
“It follows that a proposal could be supported if it complied with the first part of policy DM2 and eliminated or reduced demonstrable harm to acceptable levels regardless of whether or not it made a positive contribution under the various headings referred to in the second part of the policy.
“It was not, therefore, necessary for the Inspector and the defendant to be satisfied that a positive contribution to the residential amenity of those living nearby was made in order for there to be compliance with policy DM2.”
The inspector had made a planning judgement that the level of demonstrable harm had been reduced to an acceptable level, taking into account the number of homes affected, and the extent and duration of the impact.
“The planning judgement which she reached in relation to that is clearly expressed and in my judgement entirely lawful.”
Ground 4: Unfairness over policy EP11 on rural development
What Mr Javid said? Policy EP11 of the Fylde Borough Plan “cannot sensibly be applied to this [the Preston New Road] scheme. The policy requires “new development in rural areas should be sited in keeping with the distinct landscape character types identified in the landscape strategy for Lancashire”
What PNRAG said? Policy EP11 had been accepted as a relevant policy by all parties at the start of the public inquiry. But Cuadrilla changed its position in its closing submissions, after PNRAG had made its final statements. The group should have been informed of this change and given an opportunity to respond.
What the judge said? PNRAG was aware there was an issue about the relevance of EP11 and had an opportunity to provide evidence on it.
“I am unable therefore to conclude that there was any procedural unfairness in what occurred during the course of the inquiry.”
“I am satisfied that this Ground was arguable but again, in the event, it has not in substance been made out and must be dismissed.”
The judge added that he was “unimpressed” by the submissions by lawyers for Mr Javid and Cuadrilla that PNRAG ought to have made further submissions to the Inspector.
Gayzer Frackman’s case
Ground 1: Unlawful Environmental Statement
What Mr Frackman said? The Environmental Statement (ES) produced in support of the planning application for Preston New Road was defective because it did not provide a comprehensive assessment of cumulative impacts. There was no assessment of the greenhouse gas emissions that would be produced from gas piped and burned in homes and businesses during the extended flow testing phase. The ES also did not assess continued use of the site for gas extraction.
As a result, it did not comply with the Environmental Impact Assessment (EIA) directive. This requires a “description of the likely significant effects of the development on the environment”, including impacts that are direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary.
Paragraph 120 of the Planning Policy Guidance on Minerals (PPGM) – which requires mineral exploration applications to be considered separately from those for production – is therefore incompatible with the EIA directive.
What the judge said?
“In my view there were no indirect, secondary or cumulative impacts which had to be assessed arising from the suggestion that there might be some continuation of the use of the site for gas extraction after the completion of the development for which permission was sought.”
The planning application was “strictly limited in time and solely for the purposes of exploration of the potential gas resource”.
“Any gas provided to the grid during the extended flow phase will simply replace gas that would otherwise be consumed by residential and industrial users supplied by the grid, and thus there is no evidence that there would actually be any increase in gas usage and or greenhouse gas emissions.”
“I am satisfied that paragraph 120 of the PPGM is consistent with the relevant legal principles”
“Having considered the arguments raised in relation to the second claimant’s Ground 1, I am satisfied that this Ground is arguable, but upon analysis is not made out in substance”.
Ground 2: Ability of the regulatory regime to reduce impacts
What Mr Frackman said? Mr Javid should not have granted consent because he could not have rationally concluded that the regulatory regime could control and reduce public health and other impacts to an acceptable level.
Following doubts about health impacts raised by Dr David McCoy at the inquiry, the precautionary principle demanded that planning permission could not be rationally granted and should have been refused.
What the judge said?
“I am wholly unpersuaded that it is arguable that, taking account of the precautionary principle, it was irrational for the Inspector to recommend approval, and thereafter the defendant [Mr Javid] to accept that recommendation.”
“Having considered the arguments advanced, I would not have granted permission to apply for judicial review on the basis that I have formed the opinion that the Ground is not arguable”