Legal

What the judge said about Lancashire campaigners’ fracking challenges

PNR 170410 Ros Wills 5

Preston New Road, Little Plumpton, 11 April 2017. Photo: Ros Wills

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.

Breaking news of the ruling and reaction 

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”

28 replies »

  1. “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”

    Sums it up.

    • Er – it sums up the response to one of Mr Frackman’s points Paul. Well done. It’s what the judge said.

  2. “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.”

    ……..Pardon me? Not designed to be applied literally? I think we must have strayed into a fracking gasland, where nothing is said that is meant and nothing is meant that is said? Perhaps the Mad Fracker and the Mad Marsh Gas Flare will explain it to me? What does the Lawmouth say?

    Sajid rules for shale to frack
    While Gas is plundered locals crack
    Down below the worms you pry
    Spewing methane in the sky
    Oil and gas you now can suck
    Now we wonder what the ….?

    • The judges interpretation of the NPPF and local planning policy would indicate that onshore wind and solar developments would sit comfortably in rural areas.
      The renewable energy companies will make good use of this ruling.

      • “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.”
        So …. It is impossible for any provision or lack of provision in a planning application to breach this policy – no harm can breach this policy. Interesting judgement!

      • Hi Peter, thanks, my apologies to Lewis Carroll fans!
        I don’t have a facebook account or any social media other than e-mail, but please feel free to post it around and please ask people to check out Drill Or Drop?
        Music? That could be interesting? I’ll look into it.

        • Yes excellent poem will send to Javid . Ex banker who came into politics to give something back .What would any decent sentient human being ever want from this man

          • Thanks, its not very good really, i just could not think of that last word, something that rhymes with “suck” perhaps you could fill in the gap?
            i will expect SJ’s reply with interest, probably a boot kicking down my door? Yes, he seemed to appear out of nowhere, make the most extreme of biased adjudications and apparently is hiding away from the flak about building on the green belt. Quite a hatchet job.
            More secret meetings in the offing no doubt.

    • Consumerism is driving the dash for gas. Use it to dash the gas.

      All those who oppose fracking, who have not already done so, need to switch to companies sourcing renewable energy and install solar panels on their roof if they are able; I hear the voices say its more expensive but what price our future existence? The mass migration from the big six will make them sit up and listen; money talks. Competition will drive the price down sooner rather than later.

      Remember, the earth will keep turning after we have gone; this is not about saving the planet, it’s about saving the human race.

      • Sherwulfe. You’re right. In the last 40 years the Earth had lost HALF it’s species of animals. The greed, ignorance and arrogance of man is responsible. Human beings really are living on borrowed time before they too become extinct and it’s completely self inflicted. The Earth will keep on turning and will regenerate. Hopefully, man will be excluded from the party next time.

        • The problem which everyone trys to avoid discussing is the global population – too big, rose too fast, and is still rising too fast. We have lost half our species in 40 years because our population has gone up many fold.

          • Looks like Trump, Putin, Kim Jong-un, May, Merkel et al are preparing a solution to somewhat truncate the present human population proliferation…..

            Perhaps you agree with the so called Georgia Guidestones called the American Stonehenge, commissioned in 1979, which proposes, amongst other things, for limiting the population of the earth to 500 million, an interesting proposition, since that would require the extermination of nine-tenths of the world’s people?
            One can only speculate at what sort of genocidal and eugenicist attitude that particular monument is intended to hint at?

            All humans are unique, all 6.5+ billion of us, does anyone actually count all of the people? or do we just make an rough estimation and say it is fact? I think its the latter, we probably don’t really know exactly how many people exist today, and i am sure there are political motivations to tweak the figures one way or the other to agree with some agenda or other.

            We all have something unique to offer, mono culture only leads to corruption and stagnation, look at historical examples of that, Rome, Germany, Cambodia, Rwanda, North Korea are prime examples.

            No civilisation can exist only on just a single profit motivated exploitation of the earth’s resources, entire species have perished before man came along because they specialised to strip a non renewable resource and found themselves without food or water when it all became scarce and the population plummeted or became extinct.
            We have to be diverse, to rely on one single resource is suicidal insanity, oil and gas will run out of economic grasp, it is all ready doing so, in spite of the industry trying to talk it up. Even economics don’t lie, but they can be manipulated to portray a monopolistic agenda in order to preserve rule and privilege. That is illogical insanity, we need to forge ahead with investigating and installing every type of renewable resource, we needed to be doing that 50 years ago, now we are practically out of time.

            The power oligarchies are getting desperate to create war to boost the coffers of the military industrial complex which is all ready bankrupt beyond our entire planets ability to maintain it. What we spend on bombing people could feed every person, give everyone a house, and give us true prosperity as we all become responsible for looking after the planet.
            But the military industrial complex is desperate to survive in its present ruling elitist privilege. That will end, but they seem so desperate to maintain their stranglehold on man’s power sources, that they are even willing to plunge us all into war to do so. The worlds total debt is presently 228% compared the planets gross product, we can never pay that back, ever, unless of course we have a war and blow all the economies out of the water and simultaneously de populate the earth. Agenda or insanity? Both i would say.

            We all bring something to the mix, we may not agree, but that is fine, no one opposed slavery until some people were brave enough and awake enough to stand up and say “NO”, its been the same throughout human history, one person, or a few people can still stand up and say “This is wrong, we must stop it and find another way”.

            You should thank such people for pointing out the errors of monopolistic monoculture and stagnation, to dehumanise and criminalise protest is suicide, and when the ship goes down, and it will, there will be no one left to pull you out of the freezing water.

            • An interesting ditty from a Radio 4 programme about game design this week.

              A games designer created a game and tested it on a group.

              The scenario: 3 lakes, 3 teams; the aim to ensure protection of water supplies for the planet.

              The outcome. All three teams ran out of water.

              The designer commented that at no time did the teams discuss working together. All teams were only interested in points. When they ran out of water the consensus was ‘don’t worry, we’ll cope’.

              The players of the game were all employed in the oil and gas industry……

            • I missed that Sherwulfe, it sounds fairly typical though, I imagine that the next monopoly being prepared is drinking water, hence the uncaring attitude towards polluting everyone’s fresh water?
              I did catch something about games being newly socially bonding aspects of human behaviour, the oldest games being who can kill who and gain the empire?
              Perhaps the problem with games mentality is that there are no physical consequences? When we see Trump and other world “leaders” challenge each other, I seriously doubt they are actually conscious that the consequences are real?
              You can see that attitude everywhere now?

            • I agree Phil. Most people live in a ‘virtual world’ where they believe it can be ‘reset’ when something goes wrong. Sadly not true. Less and less of the general population are taking responsibility for their actions; an attitude preyed upon by those who take more and more control; to the point of no return.

              Children are being ‘selectively’ educated; the ‘industry of education’ like a mad sheepdog pushing the masses over the cliff to die on the rocks below. The law is represented by some who have vested interests and cannot be impartial; the same for the ‘professional’ politicians.

              The fracking story, Brexit and the demise of the NHS has awakened many, but is it enough? We shall have to wait and see.

            • Hi Sherwulfe, yes you are right, it is about taking responsibility, even the teachers are organising a strike, but its about the wrong thing, they should be protesting about turning children into ignorant job fodder, cannon fodder and to be subservient slaves to the system. We should be teaching children how to be human beings, not into unthinking machines. Someone said:
              “I see people, but I don’t see human beings” What I see is a death wish by those who pull the strings.
              Selling England by the pound, everything must go.

      • Absolutely agree! Producing energy from renewable sources could easily be less expensive than Fossil fuels and it is in some countries already. The problem is that most Governments + especially the Tories are continuing to give tax incentives to the Fossil Fuel industry as they have been lobbied to the max since time immemorial! Neither good nor fair!The time for dirty + toxic fuel is over, Mr Javid & company; get real and listen to the Science: Fracking contributes without a doubt to global warming and Climate Change and the People don’t want It. You have no social license! Catch Up with the Renewables technology that is out there and stop lagging behind with your outdated toxic fuels and policies.

        • The important thing here Jack is that we cannot rely on any government to do the right thing; too many fingers in too many pies.

          WE have to take the initiative. Those who oppose fracking MUST change their suppliers, it’s the only way forward. There is no political will to change to clean energy; if we wait as long as the move on the tobacco industry and against those that poison us including our children daily with sugar additives, we will all be dead.

          Gotta take up the sword and prove the point. Talk is over. Action is needed and fast.

  3. Only comfort in this is the repeated statement that this is a time-limited permission for testing purposes only!
    Previous efforts by Cuadrilla has resulted in abandonment!
    This will be no different conditional only that full monitoring is applied, which given evidence of the efforts of Lancashire County Council so far does seem somewhat unlikely!

  4. The local public need to know 1—- Who will do the full, I mean full regulatory emission and leak testing(Environment Agency?) , 2—- Where and when will it be published? 3—- And wait till the shit hits the fan

  5. Distinguished UK climate scientist, Professor Kevin Anderson, states very clearly that if we are serious about tackling climate change and reducing the risk of a global catastrophe, then there is no room whatsoever for any unconventional sources of energy such as shale gas or shale oil. We will not restrict global warming to 1.5C, there isn`t the time, and now there is only an ouside chance to limiting the global average to 2C (which equates to 6C in the Artic). http://envisionation.co.uk/index.php/blogs/106-tyndall-centre-for-climate-change-director-dr-kevin-anderson-says-no-to-fracking

    • Totally true + very frightening indeed. Time to divest from FF technologies and invest in Renewables! Time for politicians + dirty fossil fuel investors to wake up and do the right thing: invest in Clean, Green Renewables! Get used to it, it’s the present and the future! It’s happening now.

  6. These twisted tongue gobbeldygook speakers make me feel ashamed to be part of the same species to be honest. This entire nation is fucking up big time right now and its stupid government (democracy?) seems to be genuinely unaware of what pisses people (ordinary) off enough to become radicalised and to do stupid things in this life this world. Yup! Ashamed is the right word.

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