Legal

Government goes to court to defend consent for Cuadrilla’s Lancashire fracking site

pnr 170827 Ros Wills

Cuadrilla’s Preston New Road shale gas site, 27 August 2017. Photo: Ros Wills

Lawyers for the government today defended the decision to give the go-ahead to Cuadrilla’s Lancashire shale gas site and the UK’s first horizontal fracking wells.

They were responding to calls from a community group and anti-fracking campaigner for consent to be quashed for the operation at Preston New Road near Blackpool.

The Communities Secretary, Sajid Javid, granted planning permission in October 2016 to Cuadrilla to drill, frack and test four wells. This followed a 19-day public inquiry and overturned a refusal of consent by Lancashire County Council.

The Preston New Road Action Group (PNRAG) and campaigner, Gayzer Frackman, took two separate legal challenges to the Secretary of State’s decision, both of which were dismissed earlier this year by a High Court judge.

Yesterday at the Court of Appeal, Mr Frackman argued that the Secretary of State’s decision had failed to follow European law or the precautionary principle (see DrillOrDrop report). PNRAG argued that in reaching his decision the Secretary of State had misapplied local and national planning policy (see DrillOrDrop). The group also said there had also been an unfair procedure at the planning inquiry which had prejudiced its case.

Lawyers for the Secretary of State and Cuadrilla argued today that both appeals should be dismissed. Cuadrilla urged the three judges hearing the appeal to make a speedy decision.

Effects of fracking

Mr Frackman had argued that permission should not have been granted for Preston New Road because the EU directive on environmental impact assessments had not been complied with. His case was that the impacts of all cumulative and indirect effects of a development should be assessed as early as possible.

His barrister, Marc Willers QC, said Cuadrilla should have assessed the greenhouse gas emissions for any future gas production at Preston New Road. He said production was an “end product” of exploration.

David Elvin QC, for the Secretary of State, said greenhouse gas emissions of shale gas production would be taken into account in a future planning application. He said:

“The purpose of the exploration application is to assess the resource. If there are subsequent applications they will be assessed.”

Production, he said, was a separate project and the impacts could not be known at this stage.

Nathalie Lieven QC, for Cuadrilla, said knowledge, not gas production, was the end product of exploration. The company would learn about the likely scale of production, flow rates and volumes she said.

But Mr Willers, in his summing up, said there would be little difference between production and exploration at Preston New Road. He said the company would be producing gas during the three-years of extended flow tests.

“They will turn the gas off, apply for permission for production and if they get permission turn the tap back on.”

Mr Willers said Cuadrilla should also have assessed the greenhouse gas emissions during the extended flow testing phase when shale gas will be piped into the grid to be burned in homes and businesses.

Ms Lieven said that assessment had not been asked for by the county council or the planning inspector.

“Such an assessment is not legally required and cannot give rise to an error in law.”

It would be indistinguishable from existing gas, she said.

“In those circumstances there is no evidence that there will be any increase in gas usage by reason of the gas going into the gas network and therefore no evidence that the greenhouse gas emissions would increase one iota.”

She rejected the argument used by Mr Willers that the Committee on Climate Change (CCC) had said in a report that shale gas production must not lead to an increase in domestic gas consumption.

The CCC’s report was advice to government on policy about the compatibility of shale gas production at scale and the UK Climate Change Act targets, she said.

“It is not a legal text that needs to be satisfied in development control.”

Mr Willers said the court had an obligation under the EIA directive to correct the errors in the assessment on carbon footprint.

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Cuadrilla’s Preston New Road shale gas site, 25 August 2017. Photo: Ros Wills

Precautionary principle

Mr Willers, for Mr Frackman, had also argued that the precautionary principle had not been applied properly. He said this was because of uncertainty about the health impacts of shale gas operations and what he said was the failure of the regulatory regime to control risks.

Mr Elvin said today:

“The Secretary of State does not accept that there was uncertainty in scientific knowledge. … Overall the evidence does not demonstrate any such certainty.”

Ms Lieven, for Cuadrilla, said:

“There is extensive reference to a number of bodies, including Public Health England and the Royal Society, all of whom of have a consistent theme that public health could be protected through the regulatory regimes.”

Local and national policy

Yesterday, the court heard arguments from Preston New Road Action Group that the shale gas plans conflicted with two policies in the Lancashire development plan and a paragraph in the National Planning Policy Framework (NPPF).

Mr Elvin, for the Secretary of State, said planning policy should not be approached as a contract.

“It has to be approached with flexibility, taking account of the impact and degree of harm. This is an issue of planning judgement.”

He said the Secretary of State had to decide not whether there had been a breach of one policy but whether had been a breach of the development plan as a whole and in context.

Mr Elvin said:

“The planning inspector at the public inquiry had found that there would be an adverse impact on a valued landscape but in the light of the temporary nature of the development and mitigation and restoration proposals concluded there would be no conflict in the long=term with the aim of the NPPF to conserve and enhance the natural environment”.

One of the polices, DM2, said mineral developments would be supported where:

  • All material social, economic and environmental impacts were reduced to acceptable levels
  • There was a positive contribution to issues such as residential amenity.

PNRAG said the Secretary of State had ignored the second point of the policy.

Mr Elvin said there was an overlap between the two points and they should be read together.

Ms Lieven said the planning inspector had recognised that there were obvious limitations on what could achieved with the design for a shale gas site.

“When you are introducing a 36m drilling rig into the countryside there are limits on what you can achieve to limit its impact.”

Dr Wolfe, for PNRAG, argued in his summing up that the inspector had misunderstood the importance of the second point and saw a “positive contribution” as merely requiring mitigation.

pnr 170822 Ros Wills7

Preston New Road 22 August 2017. Photo: Ros Wills

Unfairness

The court also heard claims that Preston New Road Action Group had been treated unfairly at the inquiry because Cuadrilla had changed its argument over another local planning policy.

The company had accepted in the statement of common ground that policy EP11 of the Fylde Local Plan, which deals with development in the countryside, was applicable to the Preston New Road application. But in its summing up, after PNRAG had made it closing statement, the company argued the opposite. PNRAG said it had not been informed about the change and had no opportunity to address the inquiry.

Mr Elvin, for the Secretary of State, the change had been “sufficiently raised at the inquiry” and if there had been prejudice then the county council dealt with all the issues in its closing statement to the inquiry.

Ms Lieven, for Cuadrilla, said PNRAG had not been treated unfairly. But even if it had this would not have made any difference to the outcome, she said, because policy EP11 could not apply to shale gas sites. No further submissions from PNRAG could have affected this conclusion, she said.

Dr Wolfe, for PNRAG, said the inspector had recognised that Cuadrilla’s proposal was in conflict with policy EP11. The only reason she said the proposal was not in conflict with the development plan was because EP11 was not applicable.

“That’s why the applicability question – not weight or meaning of the policy – is so crucial”.

Reserved judgement

The three judges, Lord Justice Simon, Lord Justice Lindblom and Lord Justice Henderson, said judgement would be reserved until a later date. They gave no indication of when this would be but Lord Justice Simon recognised the “real concern about this case”.

Reaction

This evening a spokesperson for Preston New Road Action Group said:

“Our goal remains as always: to achieve true justice for our community and the people of Lancashire.

“Our case this week has been centred on specific points of law, surrounding the decision by the Secretary of State to overturn Lancashire County Council’s democratic refusal of Cuadrilla’s planning applications.

“The people of Lancashire have spoken loudly and clearly, refusing this industry that does not hold any social license here.

“The conditions of operation for this development have not been adhered to, evidenced by the deliberate and pre-meditated breach where Cuadrilla brought in around 30 HGVs at 04.45hrs one morning.

“The current situation at Preston New Road is critical and after four years of consistently showing that there is no social license to frack, we now trust that English justice will finally be delivered and we get our community back.”
“Preston New Road Action Group reaffirms there is credible evidence of risk and harm arising from the fracking industry that has not been fully explored. The group welcomed the opportunity to present crucial information at the highest level.”

DrillOrDrop reports from Day 1 of the hearing

Preston New Road Action Group’s case

Gayzer Frackman’s case


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

13 replies »

  1. The three cows seem to have no problem with the “impact” of the site!

    It would be interesting to measure the visual and noise impact of the site, with and without protestors, and required policing. It does seem a bit perverse to have the two parties concerned about such an issue when their activities are magnifying any impact.

    • Check the date of the somewhat surreal photo please Martin?
      It’s the 22nd August, 2017, before cuadrillas’s error strewn attempts at drilling started!
      Since then protesters and police officers alike have become sick after presence at the fracking site!
      Have you been to visit in the last few days? I have but not stayed long!

    • What totally stupid comments. “The three cows don’t seem to have a problem……”! “……the two parties… activities are magnifying any impact”! If you want to be taken seriously please don’t post such blather!

    • Since last week, the huge herd of cows which were grazing in the field adjacent to the pad have been moved to a field some distance away. Read into that what you will but I will still be ensuring that I don’t drink any milk from those cows.

    • 21 Economic Models with 2 cows Explained

      SOCIALISM

      You have 2 cows.
      You give one to your neighbour.
      COMMUNISM
      You have 2 cows.
      The State takes both and gives you some milk.
      FASCISM
      You have 2 cows.
      The State takes both and sells you some milk.
      NAZISM
      You have 2 cows.
      The State takes both and shoots you.

      BUREAUCRATISM

      You have 2 cows.
      The State takes both, shoots one, milks the other, and then throws the milk away.

      TRADITIONAL CAPITALISM

      You have two cows.
      You sell one and buy a bull.
      Your herd multiplies, and the economy grows.
      You sell them and retire on the income.

      SURREALISM

      You have two giraffes.
      The government requires you to take harmonica lessons.

      AN AMERICAN CORPORATION

      You have two cows.
      You sell one, and force the other to produce the milk of four cows.
      Later, you hire a consultant to analyze why the cow has dropped dead.

      ROYAL BANK OF SCOTLAND VENTURE CAPITALISM

      You have two cows.
      You sell three of them to your publicly listed company, using letters of credit opened by your brother-in-law at the bank, then execute a debt/equity swap with an associated general offer so that you get all four cows back, with a tax exemption for five cows.
      The milk rights of the six cows are transferred via an intermediary to a Cayman Island Company secretly owned by the majority shareholder who sells the rights to all seven cows back to your listed company.
      The annual report says the company owns eight cows, with an option on one more.
      You sell one cow to buy a new president of the United States, leaving you with nine cows.
      No balance sheet provided with the release.
      The public then buys your bull.

      A FRENCH CORPORATION

      You have two cows.
      You go on strike, organize a riot, and block the roads, because you want three cows.

      A JAPANESE CORPORATION

      You have two cows.
      You redesign them so they are one-tenth the size of an ordinary cow and produce twenty times the milk.
      You then create a clever cow cartoon image called ‘Cowkimon’ and market it worldwide.

      A GERMAN CORPORATION

      You have two cows.
      You re-engineer them so they live for 100 years, eat once a month, and milk themselves.

      AN ITALIAN CORPORATION

      You have two cows, but you don’t know where they are.
      You decide to have lunch.

      A RUSSIAN CORPORATION

      You have two cows.
      You count them and learn you have five cows.
      You count them again and learn you have 42 cows.
      You count them again and learn you have 2 cows.
      You stop counting cows and open another bottle of vodka.

      A SWISS CORPORATION

      You have 5000 cows. None of them belong to you.
      You charge the owners for storing them.

      A CHINESE CORPORATION

      You have two cows.
      You have 300 people milking them.
      You claim that you have full employment, and high bovine productivity.
      You arrest the newsman who reported the real situation.

      AN INDIAN CORPORATION

      You have two cows.
      You worship them.

      A BRITISH CORPORATION

      You have two cows.
      Both are mad.

      AN IRAQI CORPORATION

      Everyone thinks you have lots of cows.
      You tell them that you have none.
      No-one believes you, so they bomb the crap out of you and invade your country.
      You still have no cows, but at least you are now a Democracy.

      AN AUSTRALIAN CORPORATION

      You have two cows.
      Business seems pretty good.
      You close the office and go for a few beers to celebrate.

      A NEW ZEALAND CORPORATION

      You have two cows.
      The one on the left looks very attractive.

      • Cuadrilla’s economic model

        You have two cows
        The police arrest the protesters and delete the video
        The one on the right looks very attractive
        The police arrest the protesters and delete the video
        The police arrest the cow on the left for walking on the grass
        The police arrest the protesters, and delete the video
        Cuadrilla appeal to INEOS to extend the injunction to censor all cows and chickens going back to the magna carter
        The police arrest the protesters and delete the video
        The cow is released without charge
        The police arrest the protesters and delete the video
        Cuadrilla vandalise their own rig
        The police arrest the protesters and delete the video
        Teresa May appoints the cow on the right a peerage in the House of Lords
        The police arrest the protesters and delete the video

  2. Boring. (An interesting word to use for the subject!) The same old statement claiming sweeping misinformation and unsupported by evidence. There is so much evidence that the only way to denigrate it is to claim it doesn’t exist.

  3. I wondered when the health claims would start! Jumping the gun a bit here, as fracking is still a long way off. Holes are being drilled across the country as we speak (type) with no health issues. Random fake news is all too obvious-best to get it a bit more co-ordinated? “No good outcomes”-not the first time this term has been used, it is obviously being circulated for use. Well, oil below $50/barrel rather than $100/barrel means LIFE in certain parts of the world (I have explained how that works, I will not bother again)-to me, that is a pretty good outcome for many, but not important for NIMBYS.

    Perhaps Sellafield needs some more monitoring? Or perhaps it is slurry spreading time?

    • Martin perhaps you would like to comment regarding the allegations that both protesters and police have been affected by air quality issues in the last week. If you are unaware of the local day-to-day issues please admit it and withdraw from further discussion.

  4. Why would any air quality issues come from drilling a hole in the ground, when the same is happening elsewhere and there are no reports? I have already commented AJT-look elsewhere, and stop trying to “fit up” the “suspect”. Next, a seagull will be run over on the road and there will be claims it was subject to some substance that prevented it from getting out of the way.

    It may surprise you AJT but there have been air quality issues across the country during the last couple of weeks.

    I really did expect this “allegation” to be after fracking started. It is likely to rebound I suspect, if it is properly investigated, and is found to have some substance there will be a totally unconnected cause, and the scaremongering will receive more confirmation.

    Anyone checked if harvesting of grain/rape has been underway in the area, or grain driers operating?

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