English local councils can reject national policy on fracking if they have evidence that the process contributes to climate change, a government barrister conceded today.
The admission came in the closing session of a three-day challenge at the Royal Courts of Justice to the government’s blueprint for planning, the National Planning Policy Framework (NPPF).
The campaign group, Talk Fracking had argued that the government acted unlawfully in incorporating support for shale gas into a revised version of the NPPF, published in July.
Talk Fracking said the policy, originally in a 2015 Written Ministerial Statement, was based on outdated science on the level and potency of greenhouse gas emissions from fracking sites.
The group said new scientific developments cast doubts on the government’s case that onshore shale gas had a lower carbon footprint than imported liquid natural gas.
Talk Fracking’s case centred on paragraph 209a in the NPPF which said local authorities should develop policies to facilitate onshore oil and gas exploration and extraction and recognise their benefits in supporting a transition to a low-carbon economy.
Defending the local government secretary, Rupert Warren QC said:
“Paragraph 209a does not prevent any additional evidence being taken into account by mineral planning authorities.”
The judge, Mr Justice Dove, asked:
“Is it your position that it has been for the plan-making authority to say ‘because I have examined evidence that undermines the government’s case for shale gas I am not including shale gas extraction in my local plan?’”
“Yes”, Mr Warren replied.
The judge asked Mr Warren:
“Your submission is that, notwithstanding the benefits of shale gas, it still would be open for a decision-maker [a local authority] to conclude on the basis of scientific evidence put to that decision-maker that the facts on climate change depart from paragraph 209a.”
Mr Warren said:
“209a cannot dictate to the plan-maker and decision-maker. There will be different factors. Things change over time.”
Mr Justice Dove put it to Mr Warren:
“You are placing the burden on the decision maker to evaluate the science.”
Mr Warren replied:
“No, I am saying this is national policy. Other people can come along with evidence over time and show that the WMS is so out of date as to be proved wrong.”
This interpretation of paragraph 209a has important implications for the NPPF, the judge said.
The government’s support for shale gas, expressed through the NPPF and the Written Ministerial Statement, is regularly quoted by operators during discussions on planning applications and local plans.
Supporters of an onshore oil and gas developments often stress that national policy should be given “great weight” in any decision by local councils.
At the same time, opponents of onshore oil and gas have been told their evidence on the likely climate change effects of fracking could not be considered.
At the inquiry into Cuadrilla’s Preston New Road site, Friends of the Earth’s climate evidence was rejected on the grounds that it was a matter for future policy discussion, not a planning appeal.
Yesterday, David Wolfe QC, for Talk Fracking also argued that the government acted unlawfully because it failed to consider the Mobbs Report. This was a key piece of evidence in Talk Fracking’s submission to a consultation on the revised NPPF. It countered the science behind the Written Ministerial Statement, itself based on a review commissioned by the government from David Mackay and Timothy Stone.
A senior civil servant had said it was “not feasible to assess the veracity” of the Mobbs Report. He also said there was no need to consider the climate change impact of fracking because it was an issue of energy policy and it had been assessed elsewhere.
Mr Warren added today that ministers did not have to take account of everything said by members of the public during a consultation.
He also said:
“There is no obligation on the Secretary of State to change or review a policy. That is not what he was doing here.”
He said the revised NPPF was simply copying over a policy from the WMS. It was a “cut-and-paste” exercise, he agreed.
“There was nothing in the consultation signalling a change in energy policy”.
Mr Justice Dove asked why the consultation had included Question 37, which invited comments on the minerals section of the NPPF.
Mr Warren replied the question covered all aspects of the minerals chapter and followed a broad approach to questions in other parts of the consultation.
The judge put it to Mr Warren:
“Don’t you think it is a bit rum that at the Preston New Road public inquiry there could be no consideration of new material but then you re-issue the policy and you don’t engage in any form with the material provided at the inquiry during the consultation?”
Mr Warren replied:
“I do not accept that this is the case. There have been pieces of scientific research commissioned that are in process of being completed.
“It would be wrong if the Mobbs Report was not considered if it was obvious that things have moved on and we were still clinging on to an outdated policy. This is not the case here. Work is continuing.
“We cannot hold up the NPPF because shale gas policy is still in the trenches. I can understand why Talk Fracking are concerned about it. But it does not make the NPPF unlawful.”
Earlier, Dr Wolfe said the Secretary of State should have had an open mind to the consultation.
“But that is precisely the opposite of what happened. They were not interested in anything that countered the case they were restating of a long standing policy. That completely undermined the consultation.”
Mr Justice Dove reserved judgement in the case and a related one brought earlier this week by Friends of the Earth. He is expected to give his rulings early in 2019.
Fashion designer, Joe Corre, who heads Talk Fracking, said after the hearing:
“It is an interesting development that it appears that local planning authorities can look at climate change implications and the science.
“If they are presented with the science that shows that fracking contributes to climate change they do not have to approve an application. That seems to be very straightforward.
“The barrister for the Secretary of State was asked clearly and he confirmed quite clearly. I think it is encouraging to see that local councils can decide on that basis and it will be easy to decide against fracking because there is an abundance of science to show that fracking is harmful to our climate and causes climate change.”
Talk Fracking member, Claire Stephenson, who brought the case, said:
“The government’s whole enthusiasm for fracking seems to be pinned on the highly questionable 2013 Mackay and Stone report. This report is continually cited in government policy from thereon in. In particular, the claims of using fracked gas as a “bridge” to a low-carbon future are insupportable and contentious.
“We haven’t the time to embark on another fossil fuel industry if we are to mitigate the worst of climate change. And the fracking industry is going nowhere fast.
“It’s time for the government to listen to science and put the brakes on unsustainable energy.
“We hope that by bringing this case, the planning system that currently places great weight on a pro-fracking agenda, will be reassessed in line with global scientific findings.”
- DrillOrDrop reports on day one (Ministers should have checked environmental effects of planning policy, High Court told) and day two (Government ignored new evidence on climate impacts of fracking, court told) of the hearing
Reporting from this hearing was made possible by individual donations from DrillOrDrop readers