Opponents of Cuadrilla’s fracking plans near Blackpool brought their latest legal challenge to the Court of Appeal in London this morning.
A community group and an individual campaigner were appealing against the ruling of a high court judge earlier this year.
Mr Justice Dove, sitting in Manchester, had dismissed challenges to the granting of planning permission for Cuadrilla’s plans for drill, frack and test up to four shale gas wells at a site on Preston New Road.
But the challengers, Preston New Road Action Group (PNRAG) and resident Gayzer Frackman, argued that the judge had misapplied planning policy and EU law in rejecting their cases.
This is the latest stage in a long-running dispute which dates back to 2015 when Lancashire County Council refused permission for the Preston New Road scheme.
That decision was overturned by the Communities’ Secretary, Sajid Javid, in 2016 after a 19-day public inquiry.
This morning, three judges at the Court of the Appeal, heard the case by PNRAG that Mr Justice Dove had misunderstood or misdirected three aspects of local and national planning policy about minerals.
David Wolfe QC, for PNRAG, also argued that the group had been treated unfairly at the public inquiry and that Sir Ian should not have dismissed this part of their challenge.
“Development plan conflict”
PNRAG argued that Cuadrilla’s shale gas proposals did not comply with Lancashire’s development plan and the refusal of planning permission by the county council should have been upheld.
One of the policies in the development plan, CS5, concerned the protection of landscapes from minerals proposals.
The inspector at the public inquiry had concluded that Cuadrilla’s proposals would have a significant impact on the landscape. But she said the proposals did not conflict with policy CS5 because the impact was for only about two-and-a-half years and the site would be restored.
Mr Justice Dove had argued that policies in CS5 were not designed to be applied literally in decision-making and they should be read alongside another policy DM2.
DM2 states in two parts that minerals developments would be supported in Lancashire where:
- All material social, economic and environmental impacts were reduced to acceptable levels
- There was a positive contribution to issues such as residential amenity.
The planning inspector and Secretary of State said Cuadrilla’s plans met the first section of policy DM2 because there were measures to mitigate any impacts. Mr Justice Dove ruled that policy DM2 did not suggest that a development had to satisfy both parts in order to be supported.
Dr Wolfe, for PNRAG, said policy DM2 set a lower threshold than policy CS5 and should not replace it. He said the inspector and Secretary of State had failed to properly apply the second paragraph of DM2 and the judge’s analysis was flawed.
“National policy misapplied”
On national planning policy, the case centred on paragraph 109 of the National Planning Policy Framework. This states that the planning system should contribute to the protection and enhancement of valued landscapes.
The inspector and the Secretary of State had argued that Cuadrilla’s scheme did not conflict with paragraph 109 because any impact would be short-term. Mr Justice Dove argued that paragraph 109 was a “high-level” policy. In his judgement, he said:
“Paragraph 109 is to be read and understood as a high-order strategic objective of the planning system as a whole. How that objective is then achieved is to be articulated in the planning polices which address the appraisal of landscape impact in the context of particular kinds of development.”
Dr Wolfe argued this morning there was nothing in the NPPF which said it did not apply to short-term impacts. He said a landscape assessment had concluded there would be harm and this had taken account of the duration of the fracking plans. He added:
“If the judge is correct about the meaning and status of NPPF 109, then the protection afforded by paragraph 109 to valued landscapes is greatly diminished.”
The final section of the PNRAG case concerned a policy in the Fylde Local Plan, EP11, which had been a reason for Lancashire’s refusal of the original planning permission.
All parties at the public inquiry had agreed in a statement of common ground that EP11 on protecting rural landscape from urbanisation was applicable.
But in closing statements, Cuadrilla changed its position. PNRAG challenged this as unfair because there had been no agreement or notification.
Mr Justice Dove ruled that evidence by Cuadrilla’s planning witness was sufficient to mean that the process overall was not unfair.
But Dr Wolfe argued this morning:
“The judge’s approach, if correct, would have a very significant effect for the conduct of public inquiries.
“In particular it will lengthen cross examination and closing submissions and greatly undermine the utility of statements of common ground. Accordingly that raises a point of public importance.”
The case continues this afternoon with Geza Frackman’s case. The Secretary of State and Cuadrilla are expected to present their cases tomorrow (Thursday 31 August 2017).
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