Lancashire campaigners against Cuadrilla’s plan to frack near Blackpool have lost their latest legal challenges against the Communities’ Secretary, Sajid Javid.This afternoon, three Appeal Court judges in London dismissed the cases brought by Preston New Road Action Group (PNRAG) and Lytham campaigner, Gayzer Frackman.
They also refused requests for further appeal. But Mr Frackman’s legal team has lodged a request directly with the Supreme Court to challenge today’s ruling.
PNRAG had argued that Mr Javid misunderstood local and national planning policy in granting planning permission for Cuadrilla to drill, frack and test four wells at Preston New Road, Little Plumpton. Mr Frackman had said permission should have been refused on climate change and public health grounds.
Cuadrilla has welcomed today’s judgement. It’s chief executive, Francis Egan, said the company had always remained confident that the planning consent would stand (see full statement below).
Mr Frackman said this evening:
“We will now fight on and seek to take our case to the Supreme Court. The government has signed up to the Paris Agreement and so must be held accountable for supporting the fracking industry and the consequences for increased carbon emissions. We also hope that the precautionary principle will be properly applied, which is part of our case, because of the potentially devastating impacts of fracking on pollution and our health.”
“Having witnessed Cuadrilla’s desperate dash to drill over the last year at Preston New Road, we now want to re-double our efforts to stop this toxic industry.”
PNRAG said it was “deeply disappointed” at the decision made by the three appeal court judges, Lord Justice Simon, Lord Justice Lindblom and Lord Justice Henderson.
A spokesperson said:
“Our community has been marginalised and dismissed in favour of a decision made in the depths of Westminster.”
“Over 100,000 people objected to this fracking application. In addition, our parish council, Fylde Borough Council and Lancashire County Council rejected the application. They had a duty of care to local residents and they fulfilled that duty. They determined that the risks of this industry far outweighed any benefits to the local community.
“By overruling Lancashire County Council, this decision only benefits big business. The last three years of this fracking challenge process has damaged democracy and trust in politicians, leaving our community feeling vulnerable and unrepresented.
“We will now take time to scrutinise the decision documents and liaise with our legal team. Our end goal has not changed: we are still intent on achieving justice for the Preston New Road community and beyond.”
Estelle Dehon, a barrister at Cornerstone Barristers which represented Mr Frackman, said the Supreme Court should examine the issues of this case:
“Given the serious impact of climate change, it is imperative that the government requires developers to make a proper assessment of the greenhouse gas impacts of development.
“This is especially important where exploration seeks to pave the way for a new form of fossil fuel to be exploited. There is no logic in granting permission for shale gas exploration if the production phase will emit so much carbon and methane that its environmental impact is unacceptable.”
Ms Dehon also said the courts should examine the tension between the precautionary principle and national planning policy, which said decision-makers should assume that other regulators would do their job properly. Given the lack of evidence on the health impacts of fracking, the assumption about other regulators could not be justified under the precautionary principle, she said.
Marc Willers QC of Garden Court Chambers, who also represented Mr Frackman, said:
“This is the first case in which a court has had to consider whether planning permission can be granted for shale gas exploration wells without the need to take account of the greenhouse gas emissions that will result from shale gas production at the same wells.
“It is important that this issue is considered by the Supreme Court at a time when the shale gas industry is still in its infancy. We intend to seek permission to appeal to the Supreme Court so that it can do so.”
Dr Paul Stookes, Solicitor-Advocate at Richard Buxton Environmental Law solicitors representing Mr Frackman said:
“The reality is that the UK has breached fundamental EU laws relating to environmental impact assessment and the precautionary principle in order to permit shale gas production under the disguise of ‘exploration’. It is clear now that fracking is an unpopular and wholly uncertain way to extract an unwanted fossil fuel. It wholly contradicts the government’s latest commitment to hold our environment in trust for the next generation. If the UK is genuine about its 25 year environment plan and clean growth strategy then it must abandon the folly of fracking and focus on supporting and developing renewable energy.”
If Mr Frackman’s team were allowed to argue its case in the Supreme Court and it was successful, the Government would have to reconsider its decision to approve Cuadrilla’s Preston New Road plans. It may also be forced to strengthen the regulatory regime and review other approvals of permission for fracking.
Rowan Smith, a solicitor at Leigh Day, which represented Preston New Road Action Group, said:
“On behalf of the whole community in Lancashire, we are obviously bitterly disappointed by the Court of Appeal’s judgment. Clearly, our clients were right to take the legal battle this far, not least because the local council originally refused planning permission and the fracking industry’s chances were only saved by central government intervention.
“Our clients are in the process of considering whether to appeal.
“Meanwhile, with Ireland and Scotland having already banned fracking, surely it is time for the Westminster government to review its out-of-step ringing endorsement of fracking. All of this comes in the light of calls for fracking in the UK to be suspended, if we are to have any hope of meeting our Paris Agreement targets.
“Evidence now shows renewable energy is a cheaper alternative to dirty fossil fuels, such as shale gas, so the economics as well as the political and legal arguments all stack up against fracking being the answer to the domestic energy crisis.”
Long-running planning battle
Today’s judgement is the latest stage in a planning battle between Lancashire and Cuadrilla dating back to two and a half years.
Lancashire County Council refused planning permission for the site in June 2015. Cuadrilla appealed and the case went to a public inquiry in 2016. Mr Javid overruled the council and granted planning permission, on the recommendation of a planning inspector.
In 2017, PNRAGand Mr Frackman brought individual statutory challenges in the High Court against Mr Javid’s decision but lost.
They then took their case to the Appeal Court at a hearing in August 2017.
PNRAG argued that Cuadrilla’s plans did not comply with local and national planning policy and permission should have been refused. The group also said it had been treated unfairly at the public inquiry when Cuadrilla changed its position on a local policy on protecting the environment.
Mr Frackman had argued that permission for Preston New Road should have been refused because of uncertainties about the impact of fracking on health and what he said were the inadequacies of the regulatory regime.
His legal team also argued that Cuadrilla should have – but hadn’t – estimated the greenhouse gas emissions that would result from the burning of gas to be piped into local homes and businesses during the extended flow testing phase at Preston New Road.
What the judges said
In the case brought by Preston New Road Action Group, the appeal court judges said that the Secretary of State had not misunderstood or misapplied local planning policies.
The judges dismissed PNRAG’s arguments on Policy CS5 of the Lancashire minerals core strategy, DM2, of the Lancashire minerals local plan and paragraph 109 of the National Planning Policy Framework.
The court also ruled that there had not been any breach of procedural fairness at the public inquiry after Cuadrilla changed its position about policy EP11 of the Fylde Local Plan.
On Mr Frackman’s case, the judges ruled that Cuadrilla’s environmental statement was not flawed by the lack of an assessment on the effects of greenhouse gas emissions in the extended flow testing phase. They said the assessment had been undertaken “at the earliest possible stage”.
They also ruled that the contention was mistaken that the Secretary of State had taken account of the potential benefits of shale gas production but not the harm it would cause to the environment.
The court rejected the arguments that the Secretary of State had erred by failing to apply the precautionary principle, assuming that relevant regulatory regimes would operate as they should and in his consideration of the possible effects on human health.
In a statement issued in the past few minutes, Cuadrilla’s Chief Executive, Francis Egan, said:
“We are very pleased that the Court of Appeal has robustly dismissed both challenges on all the grounds presented, as well as dismissing requests for further appeal. The same challenges were previously dismissed by the High Court in a similarly detailed judgement made in April 2017.
We have always remained confident that that the planning consent would stand, particularly after such a lengthy and thorough review of the application and positive recommendations for approval by both the professional Planning Officers at Lancashire County Council and subsequently an experienced Planning Inspector.
As our lawful planning consent remains in place, even whilst the Court of Appeal case was heard, operations on site have continued to progress well. We have successfully completed our data acquisition programme in the shale and will commence drilling the horizontal sections of the first of two initial wells this weekend. Local businesses and workers in Lancashire continue to benefit from the significant investment and jobs that our operations are bringing to the county.”
Frack Free Lancashire
“We are hugely disappointed that these appeals were dismissed today. We remain resolute and determined to counter and challenge any plans for fracking in Lancashire and beyond, and additionally, continuing to support those communities who are subjected to this industry being forced upon them.
“Public opposition to this filthy technology continues to grow, as does our willpower to fight this insidious industry which poses far too many risks to our health, environment and ultimately our climate change targets.
“The fight continues.”
Lancashire for shale
“We are very pleased with the decision of the Court of Appeal. It means that Cuadrilla can continue its operations, which have already ploughed around £5 million into the local economy in just a year.
“However, it’s not just potential suppliers that stand to benefit from a successful shale gas industry here.
“One way or another, Lancashire’s 52,000-strong business community relies on a secure and affordable supply of gas, but most of that gas is currently imported. As the unexpected outages in December showed, our dependency on gas from overseas leaves businesses vulnerable to supply shortages and price spikes. “It’s vital that we get on with securing more of our own, affordable gas, and Cuadrilla’s work in Lancashire is an important first step in doing just that.”