Anti-fracking campaigners make latest legal challenge to Cuadrilla’s shale gas plan

170830 RCJ court of appeal day 2

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:

  1. All material social, economic and environmental impacts were reduced to acceptable levels
  2. 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.”

“Unfair procedure”

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).

Link to report from the afternoon hearing of Gayzer Frackman’s case

Link to report on the case for Cuadrilla and the Secretary of State

Reporting on this case has been made possible by individual donations by readers. You can donate here

13 replies »

  1. “Final legal challenge”-thank goodness. Courts should then be able to concentrate upon such matters as cockle rustling in Morecombe Bay.

    • I guess you don’t live in a fracking area, fracking only kills the land and poisons the people, but you’re right about the govermenment annointed gang masters cockle pickers in Morecambe Bay, that kills people too. No-one takes notice. Corrupt government rules.

  2. Hmmm I honestly don’t see this case getting anywhere, I believe the two previous HC Judges got it right when reading the details presented by the claimants.

  3. Those that care about their community, their environment and their health and wellbeing as well as future generations cannot just give up. There are too many people burying their heads in the sand on this issue, and that includes this government who promise to listen to what the people want and then just ignore them, Tory democracy at its best. I do wish some of this distant pro frackers would come down to PNR, we are not the US, we are more densely populated and if Cuadrilla get their way no one will be more than a mile from a Fracking pad, is that really what people want for Lancashire?

  4. I live in an oil area, with drilling and refining. Not sure yet if I live in a fracking area-that could evolve anywhere. I do use gas, I do drive a petrol vehicle (soon to become a PHEV) and I do type this message on a plastic keyboard, made from fossil fuel. I live around 10 miles from an expanding airport and less than 70 miles from two international expanding airports. I occasionally need pharmaceuticals. I suspect my petrol comes from a very unsavoury regime over the horizon and my gas could well come from US fracking and I would prefer both came from the UK to benefit the environment and give security over the source. I also would prefer the police have the resource to patrol Morecombe Bay, rather than have to arrest hundreds at PNR.

    I also DMOR and know there are plenty of good examples of fracking conducted perfectly safely and producing absolutely no adverse effects. Your blinkered comment about what “fracking only does” totally ignores it is producing oil prices below $50/barrel, which for many in the developing part of the world means LIFE. $100/barrel soon kills the poorest. I find your avoidance of that small point is the real corruption, when, for example, maize/wheat is processed to produce fuel for vehicles and famines find food-aid limited, or non existent. So, even in UK, plans are for 3 million tonnes of wheat to be turned into fuel/year-which equates to all our surplus in the best harvest. But it is “alternative” so we just need to ignore that it means alternative to life, for some. That is over the horizon and we can just ignore that.

    The real inconvenient truth.

  5. Lets bring this up a level from the fracking / no fracking argument. All the easy to get good fossil fuels are gone. They are at the top of the resource triangle and the good shit has been burned. The argument whether it be about deep water drilling, artic drilling, tar sands and fracking is essentially we need more of this fossil fuel currently BUT its more riskier environmentally just to extract, never mind the long term impacts of actually extracting it and prolonging fossil fuels.

    And yes there are issues with the alternatives– however the big issue is that Renewables are a disruptive technology.. so same as Internet is killing the newspaper – renewables are killing gas powered (and coal powered and nuclear) generation of electricity. The second disruptive technology is storage.. again not without issues in terms of minerals needed. This is the future however. Its really odd how the Torys can support the market for all sorts of shit, but not actually see the market realities when it comes to future energy.

    To get back to the case in point, there’s another interesting factor at play here. Should Cuadrilla be actually progressing this at all. What we see is the directors of cuadrilla being completely at odds with their duties under the companies act 2006. Section 172 outlines the duties of directors to work in the interest of the company BUT the MUST factor in (d)the impact of the company’s operations on the community and the environment, Now in this case its very clear the local community,, and from opinion polls the wider public don’t want Cuadrilla drilling. They are in effect acting outside of the companies act 2006. Essentially given the Council and local public is aganist Cuadrilla drilling if it will be interesting to see what evidence and discussions at board level were carried out by Cuadrilla in relation to the duties of directors for them to proceed with the decision to go forward to the Minister to overturn local decisions. This is crucial given Cuadrilla’s past piss poor performance. Guidance for directors under 2006 act.
    It doesn’t say whether its right or wrong, only that the board of directors must have considered it. Those minutes should be requested as part of these cases.

  6. tgc-you make a fairly basic mistake that “alternative” energy is as we see it now, and fossil fuels are as we see them now.

    I have no faith that in a few years time electric vehicles will not be the follow on to diesel- a temporary fix that was soon redundant.

    You blame the Tories not seeing the realities when it comes to future energy. Look back a bit and you will find none of the political parties have a clue regarding energy policy and that is much of the problem. They follow a trend where they think votes lie-remember David Cameron with his huskies? A silly race to follow a trend which now sees (just an example) N.Ireland without a proper government and in risk of falling back towards a very unpleasant past.

    There are emerging technologies where fossil fuels can be decarbonised and CO2 emissions can be neutralised, and I suspect this is the direction of travel. The current government is probably playing a fairly astute long game here, that their pressure towards electric covers the short term, but also places pressure upon the fossil fuel industry to come up with an alternative that will maintain their position as driving the world economy and will utilise their $trillions to do so.

    I think you will also find that the Court of Appeal can “judge” whether two thirds are greater than one third. So, I wouldn’t get too excited about Company Acts.
    You may just find companies/groups are forever appealing decisions they think are flawed, sometimes successfully sometimes not. There is one at this very moment at the Court of Appeal!

  7. Gasman,

    Your arguments are flawed on several levels.

    First, all the easy to get fossil fuels are not gone. In fact, due to advances in technology, our resource base of fossil fuels continues to increase. Some of the largest discoveries ever are happening today, in real-time…..

    And again, thanks to technology, the extraction of those resources is not “more riskier to extract” as you imply, but is actually less risky. Because fracked wells drain such a large footprint, you need many fewer wells than you did to get at conventional resources 50 years ago. Also, because of advances in completion techniques, casing technology, drilling equipment, and environmental safeguards, we have fewer problems per unit of energy extracted than we have had in the past.

    Your contention that renewables are killing gas-powered generation simply doesn’t comport with reality. Gas and renewables are killing coal generation, but renewables won’t be deployed without a flexible and stable generating infrastructure. Renewables need gas – this is a dirty little secret, so don’t tell anyone!

    As for the Company’s Act, what you think is very clear is much less clear to others. We know that the plurality of voters supported the Tories and their pro-fracking agenda. We do not know that locals are against fracking as a referendum has never been held. But at this point, fracking is judged to be in the nation’s interest, and thus it has been approved. In the US, fracking has dramatically reduced carbon emissions and has increased wealth and living standards in many rural communities. So, there is clearly another point of view to be expressed with respect to this matter.

    • EROI and EROEI on fossil fuels is now lower than ever. 6:1 on Shale oil/gas at best which is roughly in line with solar. Wind between 12:1-17:1. So financial risk is increased, and environmental damage is greater. ‘drain such a large footprint’ ahem… needs to drain such a large footprint to get anywhere near the same amount as a conventional reservoir. Advances in casing technologies ? Please behave.. Steel still fucking rusts.. what’s more some of the advances are not advances at all – merely experiments . as evidenced by this story.
      As for my contention re renewables killing fossil fuel industry — and we’ve seen wind and solar turn wholesale prices of electricity negative. Because renewable generation is dispatched first, then nuclear, gas/coal generation is suffering. Renewables may need gas now, but with proliferation of solar, wind, storage and interconnections, the future for the grid is not long term for gas.
      Whatever about referendum, in lieu of that various local parish councils, Co Councils have voted against Cuadrilla’s proposals. In the US the emissions from gas and gas infrastructure would appear to offset any emissions reduction versus burning gas as opposed to coal. Howarth et al. As for raising living standards, there’s evidence to support the opposite. eg dairy production down in fracking areas in Pennsylvania. see also the royalty class action lawsuits in US.

      • Returns support investment, thus investment is made. Perhaps as someone supporting an industry that only exists due to government largess, you have forgotten how capitalism works?

        As for well failure rates, a Groundwater Protection sponsored study found actual failure rates of between 0.01 and 0.03 percent. (sorry for supplying so many facts to combat your emotive and non-factual arguments)

        There’s no debating the fact that the marginal cost of wind and solar electricity is close to zero but that doesn’t mean they are going to kill gas my friend. Far from it. Gas will be part of the grid long after you and I are gone.

        Please don’t quote Howarth. The man has been embarassingly discredited so many times that I have lost count!

  8. very diffident joining this “conversation’ but the Green Party has been very aware of the issues around energy for a very long time and have not yet missed a trick. Sadly people just don’t listen.

  9. I think a lot of people do listen Anne, but they don’t agree, and as the Green Party is unlikely to be able to modify what actually happens in this country, they politely ignore, rather than enter into discussion regarding the economics of the policy-because that is a mine-field littered with Green corpses. Completely redistributing wealth when you have one MP just emphasises it will always be other peoples wealth-and that is not about to produce more MPs. A bit of a vicious circle, and almost impossible to move out of-especially as we appear back to two party politics for a while.

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