Nativity-style protest by Dame Vivienne Westwood and son Joe Corre outside the Royal Courts of Justice, 18 December 2018. Photo: Used with the owner’s consent

The campaign group, Talk Fracking, has won a challenge against government support in planning policy for fracking.

A High Court judge, Mr Justice Dove, allowed a judicial review in a case over the climate impacts of shale gas developments.

In a separate ruling, he rejected arguments put by Friends of the Earth on the environmental impacts of planning policy.

Talk Fracking member, Claire Stephenson, argued during a hearing in December 2018 that the government acted unlawfully in incorporating support for shale gas into a revised version of the National Planning Policy Framework (NNPF).

The new document was published in July 2018 on the final day of the parliamentary session.

Ms Stephenson said new scientific developments cast doubts on the government’s position that onshore shale gas had a lower carbon footprint than imported liquid natural gas.

The 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.

Talk Fracking said the government should have considered new evidence submitted to a public consultation which challenged the policy. Ministers acted unlawfully, the group said, because they failed to consider the Mobbs Report.

This countered the science behind a Written Ministerial Statement, supporting shale gas, which was added to the NPPF. The Written Ministerial Statement itself was based on a review commissioned by the government from David Mackay and Timothy Stone.

Mr Justice Dove said adopting Paragraph 209a into the NPPF was unlawful because the government had failed to take into account the scientific developments over low-carbon claims. He also said the government failed to carry out a lawful public consultation on the revision of the policy.

In the past hour, the judge said:

“the consultation on the draft revised Framework 204a was so flawed in its design and processes as to be unlawful.”

He said it breached the Sedley principles which set out the requirements for a full and lawful consultation exercise.

Judge Dove said evidence provided by Talk Fracking, which included the Mobbs Report, was material that was:

“capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects”.

The judge said:

“What appears clear on the evidence is that the material from Talk Fracking, and in particular and scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although … this material was relevant to the decision which was advertised.”

He said the secretary of state had not considered “obviously material considerations relevant to the decision which he had led the public to believe he was taking”.

The judge concluded:

“It was unlawful to leave that material out of account”

He dismissed Talk Fracking’s claim that the government unlawfully failed to explain the impact of the revision of the NPPF to government obligations to reduce carbon emissions under the 2008 Climate Change Act.

He also dismissed the argument that a Strategic Environmental Assessment was required by law.

The judge said he would allow Talk Fracking and the government time to consider the implications of the ruling and to make further submissions.

The implications of this case are to be considered in a public inquiry on the IGas shale gas site at Ellesmere Port in Cheshire. A key argument at the inquiry had been the impact of well testing on greenhouse gas emissions. Barristers at the inquiry, which ended today, are to make submissions about the relevance of today’s ruling.

Reaction

Claire Stephenson, who brought the challenge, said:

“We are delighted that the court has agreed in part with our arguments that the government’s policy on fracking is unlawful.

“The government have continually sought to ignore public opinion on fracking, despite the overwhelming opposition on a national level.

“The lack of public consultation and the biased support for an industry, without any substantial underlying evidence, has been a cause for concern.

“The additional acknowledgment from the Judge, that climate change is a valid concern for campaigners and councils facing fracking planning applications, is a big win.”

Joe Corré, of Talk Fracking, said:

“It’s fantastic news to be victorious this morning.

“I’m very pleased that the Court has clarified both that the Government has behaved irresponsibly and recklessly with our democratic rulebook.

“Their pretend consultation was a farce. Their Written Ministerial statement was a lie. This has now been exposed by us taking them to the Royal Courts of Justice.

“It has now also become clear, with guidance from the Court, that objections to fracking on the basis of its climate change impacts must be considered at a local planning level”.

Rowan Smith, solicitor from Leigh Day representing Talk Fracking, said:

“What is clear from this judgment is that the Government has to keep climate change science under review when formulating fracking policies in an open and transparent way.

“The 2015 statement that fracking supports a low-carbon economy was never consulted upon, and the Judge was critical of the way the Government, during last year’s consultation exercise, tried to shoehorn that statement into national policy whilst brushing off public objections to the basis for doing so.

“It is clear what the Government must now do, namely hold a full review of its policy support for fracking, after a meaningful public consultation and properly considering the scientific developments Talk Fracking presented and all other related material.”

A spokesperson for the Ministry of Housing, Communities and Local Government said:

“We note the judgment in the case brought by Talk Fracking, and will now consider our next steps.”

Arguments in the case

In December 2018, the court heard evidence from a senior civil servant, Dr Michael Bingham, that 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.

But Dr Wolfe, for Talk Fracking, said:

[the government] were not interested in anything that countered the case they were restating of a long standing policy. That completely undermined the consultation.”

“The Secretary of State had asked for (and indeed encouraged) views: he needed to consider them properly, particularly when they were scientifically based and properly explained.

“It was no answer to put it in the “too hard” pile, without even looking at it.”

Rupert Warren QC, barrister for the local government secretary, said English local councils could reject national policy on fracking if they had evidence that the process contributed to climate change.

“Paragraph 209a does not prevent any additional evidence being taken into account by mineral planning authorities.”

Mr Warren described the section on shale gas in the revised NPPF as a “cut and paste exercise”, simply copying over policy from the previous written ministerial statement. He said the secretary of state was not obliged to take account of everything said by the public during a consultation.

Mr Warren denied the government was “clinging to an outdated policy”.

”This is not the case here. Work is continuing.”

Government support for shale gas, expressed through the NPPF and the written ministerial statements, is regularly quoted by operators during discussions on planning applications and local plans. They say national policy should be given “great weight” in an decision by local councils. At the same time, opponents of onshore oil and gas have been told that their evidence on the likely climate change effects of fracking could not be considered.

Friends of the Earth case

In a separate challenge, Friends of the Earth argued that the revised NPPF was unlawful because the government should have reviewed the impacts on the environment.

Richard Kimblin QC, for Friends of the Earth, said the NPPF was covered by a European directive and regulations on environmental assessments of plans and programmes.

Mr Justice Dove dismissed this case.

He said:

“I am not satisfied that the Directive applies to the Framework.

“It is not a plan and programme since it does not fall within the definition provided by the Directive.”

He said the Friends of the Earth case was arguable but he was not satisfied of its “substantive merits”.

Reaction

Will Rundle, Friends of the Earth’s head of legal, said:

“We are disappointed with today’s judgment and will be considering an appeal.

“In ruling that this national planning policy can be developed without any environmental assessment at all, the Court has deprived communities of a meaningful say in how their local environment could be affected by new developments.

“The judgement has failed to apply developing case law, which we think makes it clear that national planning policy like this that has significant effects on the environment should be environmentally assessed in order to protect our environment.

“This also has worrying implications around democratic accountability for government, which can push through its planning policies without coming clean about what they mean for the world around us.”

A spokesperson for the Ministry of Housing, Communities and Local Government said:

“Environmental protections are at the heart of our new planning rulebook, setting clear expectations for future development.

“We are pleased that the judgment in the case brought by Friends of the Earth confirms that we do not need to reassess the rules.”

Background to the case

At that original hearing, Richard Kimblin QC, for Friends of the Earth, said there should have been a strategic environmental assessment and a public consultation on the revised NPPF. Without them, he said:

“the plan is adopted blind, and without the advantage of those consultation responses. There is no consideration of whether the plan could achieve the stated aims in a better way. If an SEA is undertaken, the plan may well be significantly different.”

He said some effects of the NPPF could be positive, some negative.

“It is not possible to say what the effects are, nor to gauge their significance, because that assessment has not been done.”

He said the NPPF was often the main decision-making tool when a local development plan has little to say about a proposal. And the NPPF trumped when the development plan was inconsistent with the NPPF. It was “of great importance to the environment in England and to its proper land use planning”.

The government dismissed these arguments. It said it was not a requirement that the NPPF must be met if planning permission were granted for a development.

Reporting from the hand down of the ruling and the court challenge was made possible by individual donations from DrillOrDrop readers