Refusal of consent for Cuadrilla’s Lancashire fracking site is the only rational decision, court told


Gayzer Frackman

An anti-fracking campaigner urged the Court of Appeal this afternoon to quash planning permission for Cuadrilla’s shale gas site in Lancashire.

Gayzer Frackman, from Lytham, was pursuing his case against the Communities’ Secretary, Sajid Javid, who granted consent in October 2016 for drilling, fracking and testing four wells at Preston New Road near Blackpool.

Mr Frackman, who changed his name by deedpoll, brought a statutory challenge to the decision earlier this year but his case was dismissed by the High Court judge, Mr Justice Dove.

At an appeal hearing at the Royal Courts of Justice in London, Mr Frackman’s barrister, Marc Willers QC, told the court:

“The uncertainties of impacts [of fracking] on health and the inadequacies of the regulatory regime, when coupled with the precautionary principle required one response.

“The only logical, rational decision that could have been reached when talking about people’s lives and health would be to refuse permission.”

Mr Willers said the judge’s dismissal of the challenge had been flawed because of errors in law. It also failed to address what he said was an “unlawful inconsistency” in the Secretary of State’s decision.

On uncertainties about health impacts, Mr Willers said Mr Justice Dove had been wrong in law to discount them.

“At this moment in time there is inadequate information available to be sure about the impacts on public health of shale gas production.”

The judge was also wrong to permit an assumption that the regulatory regime operated properly to control the impacts, Mr Willers said.

“An assumption that non-planning regimes will operate effectively to address risk must be premised on first knowing with sufficient certainty what the risks are. The regulatory regimes cannot regulate what is unknown.”

Assessing greenhouse gas emissions

Mr Willers said the judge also failed to apply case law from the European Court of Justice on what should have been assessed before permission was granted.

This focussed on whether Cuadrilla should have estimated the greenhouse gas emissions that would result from the burning of gas piped to homes and businesses during the extended flow testing phase of the Preston New Road project.

Mr Justice Dove had accepted the argument made by Cuadrilla’s barrister that the Preston New Road shale gas would displace other gas in the system. It would not result in any increase in consumption or greenhouse gas emissions.

Mr Willers said Cuadrilla’s barrister “could not possibly know that displacement would occur”. He said the barrister was “simply guessing” and assumptions could not be made without an assessment.

The judge had “wrongly transmuted” that guess into an assumption that displacement would occur, Mr Willers said. This was contrary to the EU Environmental Impact Assessment (EIA) Directive, which said analysis should be conducted to determine whether an impact was likely to occur.

“If the learned judge were right, then all applications for shale gas fracking which involved extended flow testing would avoid consideration of greenhouse gas effects”.

Mr Willers added:

“It also gives decision-makers a clear indication that they may reasonably assume that greenhouse gas impacts of exploration or production will be nil, without any evidence to support such an assumption.

“It would render the environmental assessment of the greenhouse gas impacts of the production phase a pointless exercise”

“Production impacts should be assessed”

Mr Willers said the Preston New Road project was “production by another name”.

“The whole purpose of the PNR application was to bring about conditions necessary for production.”

He said it would be “a brave decision-maker” who turned down permission for production after the exploration stage.

Mr Willers said the Secretary of State had failed to comply with the EIA Directive on assessing production emissions.

The Directive required an assessment of the indirect, secondary and cumulative effects of the project liable to arise from the use or exploitation of the end product of the works. Mr Willers argued that commercial exploitation was an end production of exploration.

Mr Justice Dove had ruled at the High Court that the Preston New Road scheme had to be addressed on its own terms. He said it was strictly limited in time and solely for the purpose of exploration. Any gas extraction beyond what was allowed under the project would need another application and another assessment of its impacts.

But Mr Willers said case law from the European Court of Justice was clear:

“Where national law provides that the consent procedure is to be carried out in several stages, the Environmental Impact Assessment in respect of the project must, in principle, be carried out as soon as possible to identify and assess all the effects which the project may have on the environment.”

Mr Willers said Mr Justice Dove: “fell into error in relying on the limited nature of the application as a basis for finding that there were no indirect, secondary or cumulative effects”.

The judge’s argument that there would be further EIAs was “fundamentally flawed as a basis for rejecting the production stage as an indirect effect of exploration”, Mr Willers said.

He added that the EIA Directive was incompatible with paragraph 120 of UK planning policy guidance on minerals (ppgm), which required decision-makers not to take account of environmental effects of production at the exploration phase.

The judge’s failure to address these points in his ruling amounted to an error in law, Mr Willers said.

Cherry picking” positive effects

Secretary of State took account of some positive cumulative effects of the production phase of shale gas development, but ignored the negative cumulative impacts, Mr Willers said. Mr Justice Dove was wrong in law for failing to address these points in in his ruling.

The judge had said the Secretary of State had given little or very limited weight to the benefit of shale gas production at scale in his decision.

But Willers said this was incorrect. The Secretary of State, he argued, had given significant weight to the Preston New Road project because it represented a positive contribution towards the reduction of carbon.

This morning the court heard the appeal by Preston New Road Action Group. DrillOrDrop report

The case continues tomorrow (Thursday 31 August 2017) when lawyers for the Secretary of State and Cuadrilla will make their cases.

DrillOrDrop report on the case for Secretary of State and Cuadrilla (31/8/2017)

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

7 replies »

  1. Thanks Ruth for your detailed reporting on this case, i would hesitate to say, last ditch stand, or perhaps a last drill stand? This case seems to be one of those to challenge the Secretary of States authority to overrule local planning decisions and perhaps illustrates that the decision requires some further detailed justification in terms of what constitutes safety, the Paris Agreement on climate change and whether the operation constitutes fracking or merely exploration?
    It should be noted perhaps that government policy is stated to support local planning authorities ruling on local issues, but it appears in practice the operation of Sajid Javid decision was precisely the opposite, that central government has taken upon itself, for whatever reason, the right to overrule local government when o€$¥£&g operations are concerned.
    That is quite fundamental to the whole industry standing in the UK, as it puts power to define and refuse such practices back into the hands of local population and local government and out of the hands in effect, of central government.
    That is quite a step to be allowed to be taken, we can imagine what fundamental issues are at stake here?
    Today we will perhaps see what transpires with the government’s and Cuadrilla’s case to protect their assumed legal territory?
    Local rights or central rights?

    • One could surmise that any similar case would be decided upon firstly the challenge to the original adjudication and that will be a re-examination of legal definitions and balance of whether the legal issues have all been addressed to confirm or re-evaluate the original adjudication decision.
      Secondly one could surmise that such re-evaluation would be further examined with new submitted information supplied by both protagonists, however they are presented.
      It is unlikely that any re-evaluation will include such issues as central government policy for localism or centralism, that being merely a declared policy and not a legal requirement one way or the other.
      Perhaps the confusion with court cases is a result of the understandable misunderstanding of rights and wrongs in social terms being confused with legal rights or wrongs.
      The legal society has a prime responsibility to ensure and define legal positions regarding claims and counter claims and to award or claim reparation in primarily monetary terms, common law underpins most of that, however admiralty and company law (we are all defined as legal entities, that is why our legal name is all uppercase, our birth certificate is a declaration of ownership, in effect we are all UK corporate property but we have not been informed of that or allowed to challenge it, yet)
      The law does not specifically concern moral or ethical rights or wrongs, unless such issues are directly addressed and declared, but that can be declared and then becomes an entirely different ‘case’.
      One only needs to look at past adjudications’ to see that law is often decided upon legal precedent and the efficacy of how the legal issues are defined. There are however the most heartening results of cases where basic human rights issues have been overturned and redefined following landmark cases brought about by individuals who have the ethical and moral rights of certain Individuals and ethnic and social groups have changed the relevant laws quite fundamentally.
      One could perhaps say that the results of adjudications are not always the final word in cases which seek to address social ethical and moral issues. Often a negative ruling results in a growing public movement to change the status quo and latterly that status quo becomes notorious and becomes overturned in a public move to change the way the law in this respect works.
      It is not difficult to see such ‘sea changes’ in history some of the most deeply protected legal positions have become entirely reversed and one could say, set right.
      It would be wrong to refer to this case in mid trial so to speak, however it is always edifying to examine the principles involved.

    • Thanks GhostsInTheShale, as you say a declared policy is not a legal requirement.
      As you suggest further speculation on this particular case mid stream would be perhaps inadvisable until the result is declared.
      Interesting insight into corporate ownership btw?

  2. Local rights can be mistaken for tribal law where local carry out “local law” according to their “local” interpretations. [Edited by moderator]

  3. Ah my least favorite Hungarian clown, and before that gets moderated, he is Hungarian and he is a clown by profession! You couldn’t make this stuff up could ya!
    Hopefully this is the last time I need to see this guy.

  4. You guys need to read about the demand for water from fracking operations (when oil cos say they are not fracking, they are still going to use the same amount of water)… where will they get the water from in Surrey? Which councilors will FREEZE the cost of water for the next 10 years to ensure the public do not have to pay for increased price due to increased demand?

    Forget the crops.

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