Cuadrilla fracking inquiry: key planning policy issues

Policy

Role of the development plan

Decisions and the development plan

Planning laws require decisions to be judged against policies in the development plan. Both sides referred to:

Section 38(6) of the Planning and Compulsory Purchase Act :
“The determination must be made in accordance with the [development] plan unless material considerations indicate otherwise.”

Section 70, Town and Country Planning Act 1990
the [decision-making] authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.

Paragraph 215, National Planning Policy Framework (NPPF)
Provides that “due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In Lancashire the development plan comprises:

  • Joint Lancashire Minerals and Waste Development Framework Core Strategy
  • Joint Lancashire Minerals and Waste Local Plan Site Allocation and Development Management Policies
  • Fylde Borough Local Plan

‘Development plan silent and out-of-date’ – Cuadrilla

Cuadrilla argued the Lancashire development plan was silent on shale gas and out of date. It cited the following to argue the Preston New Road and Roseacre Wood sites should be allowed:

Paragraph 14, NPPF
“For decision making this means where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: – any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or – specific policies in this Framework indicate development should be restricted.”

Cuadrilla justified its position by arguing that policy DM2 of Joint Lancashire Minerals and Waste Local Plan did not address the specific issues of shale gas or the national need and benefits of hydrocarbon exploration. It did not, for example, recognise that equipment, such as drilling rigs, was needed for hydrocarbon exploration proposals, Cuadrilla argued.

The company said the Joint Lancashire Minerals and Waste Local Plan contained no “criteria-based policies in, so it conflicted with the follow paragraph in Planning Practice Guidance on Minerals (PPGM):

Paragraph 106, PPGM
Where mineral planning authorities update their local plan they are expected to include
“Criteria-based policies for each of the exploration, appraisal and production phases of hydrocarbon extraction. These policies should set clear guidance and criteria for the location and assessment of hydrocarbon extraction within the Petroleum Licence Areas.”

On the Fylde Borough Local Plan, Cuadrilla’s barrister, Nathalie Lieven argued that it was out of date:

“Given the age of the policy (2005) it does not address the specific issues and national need and benefits of hydrocarbon exploration and extraction, as set out in recent government statements.”

Opponents’ rebuttal on development plan

The opponents dismissed the argument that the development was silent, absent or out of date.

Friends of the Earth said the age of the policy was not relevant citing the following:

Paragraph 211, NPPF
“[policies] should not be considered out of date simply because they were adopted prior to the publication of this framework.”

Lancashire County Council argued that the development plan took account of national policy and had been judged sound by a planning inspector. DM2, in particular, recognised that “a balance needs to be struck between the social, economic and environmental impacts of, and the need for, the development”.

The council and Friends of the Earth quoted from the ruling by Judge Linblom in the 2014 case of Bloor Homes, which stated the development plan was not silent if:

“It contains a body of policy relevant to the proposal being considered and sufficient to enable the development to be judged acceptable or unacceptable in principle.” A plan was silent only if “that a plan does not have a specific policy for a particular type of proposal that might be put forward on a particular site”.

Alan Evans, for Lancashire County Council, said the Lancashire core strategy, local development management policies and the Fylde Borough Local Plan contained enough policies to make a judgement on Cuadrilla’s proposals.

He said PPGM left it to the discretion of mineral planning authorities to include criteria-based policies. PPGM didn’t say policies were out of date if they didn’t mention shale gas, he added.

The opponents argued the policies were consistent with the NPPF and should be given full weight.

Need for shale gas

Cuadrilla’s case

Cuadrilla said its exploration plans at the two sites were supported by government policy on the need for shale gas and quoted the following:

Written ministerial statement by Amber Rudd, Secretary of State for Energy and Climate Change, 16th September 2016
“The Government therefore considers that there is a clear need to seize the opportunity now to explore and test our shale potential.” “This statement to Parliament should be taken into account in planning decisions and plan-making.”

Paragraph 91, PPGM
“There is a pressing need to establish – through exploratory drilling – whether or not there are sufficient recoverable quantities of unconventional hydrocarbons such as shale gas”

North and Western Lancashire Chamber of Commerce referred to the minerals plan:

Joint Lancashire Minerals and Waste Development Framework Core Strategy
Objective 3: To provide a sustainable supply of locally sourced minerals, sufficient to meet our contribution to local, regional and national needs.

Opponent’s case

The opponents argued that the written ministerial statement did not seek to:

  • Displace the development plan
  • Impose outcomes in individual cases
  • Alter existing policy

Roseacre Awareness Group said the statement required shale gas to be developed “in a safe, sustainable and timely way”. It added:

“This Statement provides no support for the idea that the need for shale gas development trumps considerations of safety or sustainability. On the contrary, its purpose is to promote safe and sustainable exploration”.

“It is not national policy to encourage shale gas exploration in unsuitable locations. Safety and sustainability are key considerations. Even assuming a national need for exploration, there is no such need for exploration at Roseacre Wood”.

Opponents said local policy dealt with the issue of need:

Policy CS1 of core strategy “Safeguarding Lancashire’s mineral resources:
“Minerals will only be extracted where they meet a proven need for materials with those particular specifications.

Benefits of mineral extraction

Cuadrilla and North and Western Lancashire Chamber of Commerce cited national and local policies and the written ministerial statement in support of their case about the benefits of shale gas exploration:

Written ministerial statement, 16th September 2015
“Exploring and developing our shale gas and oil resources could potentially bring substantial benefits and help meet our objectives for secure energy supplies, economic growth and lower carbon emissions.

Paragraph 144, NPPF:
[Requires decision-makers] “to give great weight to the benefits of the mineral extraction, including to the economy”

Lancashire strategic economic plan 2015-2025
“Lancashire has potentially one of the largest reserves of shale gas in Europe. … Subject to regulatory confirmations, the shale gas sector may begin to play an important economic role in Lancashire within the timeframe of the Growth Deal.”

Opponents of the fracking proposals argued that local economic benefits of the exploration phase were at best modest and the national economic benefits would flow only from commercial production at some later stage in the development. These benefits cannot weigh in favour of this development, they argued.

Climate Change

Cuadrilla’s case

The company said government policy supported its argument that shale gas would contribute to a low carbon economy:

Written Ministerial statement, September 2015
Having access to clean, safe and secure supplies of natural gas for years to come is a key requirement if the UK is to successfully transition in the longer term to a low carbon economy.”

Opponents’ case

Opponents pointed to national and local policy to support their case that the exploration schemes should be refused on climate change grounds:

Paragraph 93, NPPF
“Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low carbon energy and associated infrastructure. This is central to the economic, social and environmental dimensions of sustainable development.”

Paragraph 1, Planning Practice Guidance Climate Change
“Addressing climate change is one of the core land use planning principles which the National Planning Policy Framework expects to underpin both plan-making and decision-taking.”

Policy DM2, the Lancashire Minerals and Waste Local Plan Site Allocation and Development Management Policies-
“Developments will be supported where it can be demonstrated … that the proposals will, where appropriate, make a positive contribution to the reduction in carbon emissions”.

Friends of the Earth concluded:

“The written ministerial statement does not favour high volume hydraulic fracturing in the United Kingdom above other methods of obtaining shale gas. Nor does it operate to create a presumption in favour of developments such as these proposals. Nor does it displace the Development Plan. Nor does it reduce the statutory duties under the Climate Change Act 2008. Nor is the Ministerial Statement akin to policy that has been tested by formal public consultation.”

Friends of the Earth said the inspector should give less weight to the written ministerial statement because since it was made the government had scrapped its pilot scheme for commercial carbon capture and storage and had signed the Paris climate agreement.

Sustainable development

Cuadrilla’s case

Cuadrilla argued that the plans contributed to sustainable development, referring to:

Paragraph 142, NPPF
“Minerals are essential to support sustainable economic growth and our quality of life. It is therefore important that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs.”

Opponent’s case

Opponents said the impacts of the plans meant they conflicted with national and local policies on sustainable development:

Paragraph 6, NPPF
“The purpose of the planning system is to contribute to the achievement of sustainable development

Paragraph 7, NPPF
“There are three dimensions to sustainable development: economic, social and environmental”.

Paragraph 14, NPPF
“At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development”

Policy CS5, Achieving Sustainable Minerals Production, Joint Lancashire Minerals and Waste Development Framework Core Strategy
[Planning should] ensure that:…(v) the amenity, health, economic well-being and safety of the population are protected by the introduction of high operating standards, sensitive working practices and environmental management systems that minimise harm and nuisance to the environment and local communities throughout the life of the development”

Preston New Road Action Group said the proposal for Preston New Road “which was harmful to the extent that it was unsustainable would not enjoy the support of the written ministerial statement”.

Impacts

Cuadrilla argued in its closing statement that the impacts of the site were: “of short duration and strictly controlled and limited by conditions”.

“As all the impacts will be mitigated to an acceptable level there is no breach of [policy] DM2 of the Development Plan”.

Opponents disagreed. They said the impacts that could cause demonstrable harm had not been eliminated or reduced to acceptable levels and so the schemes did not comply with DM2.

Roseacre Awareness Group said the NPPF nor PPGM invited decision-takers “to ignore or downplay the adverse effects of shale gas exploration”.

Landscape

In June 2015, Lancashire County Council refused the Preston New Road application because it said:

“The development would cause an unacceptable adverse impact on the landscape, arising from the drilling equipment, noise mitigation equipment, storage plant, flare stacks and other associated development. The combined effect would result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policy DM2 Lancashire Minerals and Waste Local Plan and Policy EP11 of the Fylde Local Plan.”

Cuadrilla’s case

Cuadrilla said:

“We have concluded that there will be no long lasting significant adverse change to the character of the landscape and any associated urbanising effect.”

The company said Policy DM2 did not recognise that equipment, such as drilling rigs, were needed for all hydrocarbon exploration proposals. It was impossible for a shale gas site to comply with Policy EP11 because rigs could not be constructed, as required, in a “local vernacular style”.

Cuadrilla’s barrister, Nathalie Lieven, said:

“It is my opinion that the adverse visual impacts of the use of this equipment do not demonstrably outweigh the benefits associated with the exploration project”.

Opponents’ case

At the inquiry, opponents argued both schemes failed to respect positive landscape features and exacerbated negative features. They were, opponents said, in conflict with policies designed to protect the landscape. They cited:

Paragraphs 17, 109, 125 and 144, NPPF
Opponents said the proposals breached these policies because they do not contribute to protecting, conserving and enhancing the locally valued natural environment because of the adverse impacts on visual amenity and landscape character.

Policy DM2 of the Lancashire Minerals and Waste Local Plan
…” all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels”

…”proposals will, where appropriate, make a positive contribution to: biodiversity, geodiversity and landscape character; residential amenity of those living nearby”

Policy CS5, Joint Lancashire Minerals and Waste Development Framework Core Strategy
[The policy seeks to ensure that]: – proposals for mineral workings incorporate measures to conserve, enhance and protect the character of Lancashire’s landscapes; – the amenity, health, economic well-being and safety of the population are protected by the introduction of high operating standards, sensitive working practices and environmental management systems that minimise harm and nuisance to the environment and local communities throughout the life of the development”.

Policy SP2, Fylde Borough Local Plan
“In countryside areas, development will not be permitted except where proposals properly fall within one of the following categories” [agriculture, horticultural or forestry]

Policy SP9, Fylde Borough Local Plan
“Permits development where: – on farms the proposed use is ancillary to the main farming enterprise and is either related to the main enterprise or has a special affinity with the countryside and in any case is appropriate to a farm location; – proposed new buildings are of appropriate scale, design and materials and relate well to other existing buildings and the character of the rural area; – the proposal would not adversely affect the amenities enjoyed by nearby residents or prejudice the character of existing buildings or the surrounding area.

Policy EP11, Fylde Borough Local Plan
New development in rural areas should be sited in keeping with the distinct landscape character types identified in the landscape strategy for Lancashire and the characteristic landscape features defined in policy EP10. Development must be of a high standard of design. Matters of scale, features and building materials should reflect the local vernacular style.

Policy EP27, Fylde Borough Local Plan
Development which would unnecessarily and unacceptably result in harm by way of noise pollution will not be permitted. Where appropriate, planning permission will be granted subject to conditions to minimise or prevent noise pollution.

Policy EP28, Fylde Borough Local Plan
In relation to development proposals involving external lighting facilities, regard will be had to the issue of light pollution. Proposals should avoid or minimise harm relating to loss of local character, loss of amenity or reduction in highway safety. External lighting schemes must be well designed and the light intensity not excessive in relation to the function it performs. Light sources must be directed at the object to be illuminated thereby minimising extraneous emissions.

Landscape Strategy for Lancashire
Opponents argued that the proposals conflicted with this strategy because it identified positive features of the Fylde landscape type that should be preserved and had policies to mitigate negative features.

Noise

In June 2015, Lancashire County Council refused the exploration proposal for Preston New Road partly on noise grounds. It said:

“The development would cause unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to Policy DM2 of the Lancashire Minerals and Waste Local Plan and Policy EP27 of the Fylde Local Plan.”

Cuadrilla’s case

At the inquiry, Cuadrilla argued that the proposals for both Preston New Road and Roseacre Wood complied with national planning policy on noise. The company said policy accepted that some noise was inevitable:

Paragraph 143, NPPF
“When considering noise limits, local plans should take into account “that some noisy short-term activities, which may otherwise be regarded as unacceptable, are unavoidable to facilitate minerals extraction.”

Cuadrilla said its noise mitigation measures showed it had complied with another section of the NPPF

Paragraph 123, NPPF
Planning policies and decisions should aim to: – “mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise including through the use of conditions”.

Cuadrilla said its night time noise limit of 42 decibels complied with PPGM and reducing it below 42 would be an “unreasonable burden” on the company:

Paragraph 21 PPGM
“For any operations during the period 22.00 – 07.00 noise limits should be set to reduce to a minimum any adverse impacts, without imposing unreasonable burdens on the mineral operator. In any event the noise limit should not exceed 42dB(A) LAeq,1h (free field) at a noise sensitive property.”

Nathalie Lieven, for Cuadrilla, told the inquiry policy DM2 of the Joint Lancashire …. Did not set specific noise limits.

“It is my view that demonstrating compliance with national policy and guidance also demonstrates compliance with policy DM2.”

“We consider that the appropriate noise level to ensure no adverse effects on health and quality of life are those set out in PPG Minerals. We have demonstrated that with mitigation measures these limits can be achieved, therefore complying with the second criteria of the paragraph 123 of the NPPF.”

Opponents’ case

The opponents argued that Paragraph 21 PPGM set a maximum level night time level and developers should seek to reduce noise to a minimum.

They said national policy supported their case that planning should prevent health effects from noise:

Paragraph 123, NPPF
“Planning policies and decisions should aim to: – Avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development, and – Identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason.”

Opponents also argued that the proposals breached the following sections of the NPPF and PPGM:

Core planning principles, Paragraph 17, NPPF
“Always seek to secure high quality design and a good standard of amenity for all existing and future occupants of land and buildings”

Paragraph 109,NPPF
“The planning system should contribute to and enhance the natural and local environment by: – preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability.”

Paragraph 144, NPPF
“When determining planning applications, local planning authorities should: – ensure that any unavoidable noise, dust and particle emissions and any blasting vibrations are controlled, mitigated or removed at source, and establish appropriate noise limits for extraction in proximity to noise sensitive properties;”

Paragraph 20, PPGM
[Authorities] “should take account of the prevailing acoustic environment and in doing so consider whether or not noise from the proposed operations would: • give rise to a significant adverse effect; • give rise to an adverse effect; and enable a good standard of amenity to be achieved.”

Opponents also argued that the fracking proposals conflicted with local planning policies:

Policy DM2 of the Lancashire Minerals and Waste Local Plan
…” all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels”

…”proposals will, where appropriate, make a positive contribution to: biodiversity, geodiversity and landscape character; residential amenity of those living nearby”

Policy EP27, Fylde Borough Local Plan
“Development which would unnecessarily and unacceptably result in harm by way of noise pollution will not be permitted. Where appropriate, planning permission will be granted subject to conditions to minimise or prevent noise pollution.”

The opponents quoted from the Noise Policy Statement for England (NPSE):

Noise policy vision, NPSE
Promote good health and a good quality of life through the effective management of noise within the context of Government policy on sustainable development.

Paragraph 2.14, NPSE
“Noise exposure can cause annoyance and sleep disturbance both of which impact on quality of life. It is also agreed by many experts that annoyance and sleep disturbance can give rise to adverse health effects.”

The noise experts at the inquiry disagreed over whether noise assessments should use the World Health Organisation community noise guidelines or the night noise guidelines. They also disagreed about which British Standard should be used. We’ll look at this in more detail in a post in the next few weeks.

Traffic

In June 2015, Lancashire County Council refused the Roseacre Wood exploration proposal on traffic grounds. The council said:

“The proposed development would be contrary to Policy DM2 of the Joint Lancashire Minerals and Waste Local Plan – Site Allocation and Development Management Policies in that it would generate an increase in traffic, particularly HGV movements, that would result in an unacceptable impact on the rural highway network and on existing road users, particularly vulnerable road users and a reduction in overall highway safety that would be severe.”

Cuadrilla’s case

At the inquiry, Cuadrilla argued that the transport implications of the Roseacre Wood proposal had been overstated by the council.

The company said:

“We have concluded through the transport assessment undertaken that, with the appropriate measures and controls in place, the transport impacts will not be severe.

“We believe that the proposals, with the proposed traffic mitigation measures and controls in place, comply with policy DM2. Also the proposals … in my opinion fully comply with paragraph 32 of the NPPF that requires:

Paragraph 32 NPPF
“Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe”.

Opponents’ case

Lancashire County Council defended refusal based on DM2 by quoting from the justification for the policy:

Paragraph 2.2.16, Justification of Policy DM2, Joint Lancashire Minerals and Waste Local Plan
“Heavy lorries can have adverse impacts on residents and other sensitive land uses; they can also cause damage to roads and verges, especially at the point of access; they can contribute to noise and they can impact on road safety, if unsuitable roads are used.”

The opponents argued that the overall, harmful impacts of traffic had not been reduced to acceptable levels. The proposal would not result in a reduction in length and number of journeys made. It therefore breached DM2 of the Joint Lancashire Minerals and Waste Local Plan.

Opponents also argued that the impact of traffic would be severe and so the proposal did not comply with Paragraph 32, of the NPPF, quoted by Cuadrilla. It also failed to comply with other parts of the NPPF, they said:

Paragraph 32, NPPF
“Plans and decisions should take account of whether: – safe and suitable access to the site can be achieved for all people”

Paragraph 35, NPPF
“Developments should be located and designed where practical to: – accommodate the efficient delivery of goods and supplies; – give priority to pedestrian and cycle movements, and have access to high quality public transport facilities; – create safe and secure layouts which minimise conflicts between traffic and cyclists or pedestrians;”

Newton with Clifton Parish Council argued that Cuadrilla’s transport assessment had not been thorough, in breach of Paragraph 4, Planning Practice Guidance Transport. The parish council also argued that Cuadrila’s preferred route, which measured more than 18km from the site to the strategic road network, breached the local development plan policy:

Policy CS5, Joint Lancashire Minerals and Waste Development Framework Core Strategy
“As far as possible, all traffic will be encouraged to use the primary route network (as defined in the Regional Spatial Strategy), and this applies especially to heavy goods vehicles.”

Lighting

Cuadrilla accepted that both sites would be lit at night and during the drilling phases this would be “undoubtedly prominent”. But the company said lighting would be temporary and subject to a lighting scheme. In the second phase, after drilling and fracking, lighting would be limited to equipment almost wholly below the 4m fence and would have “a very limited impact”

Opponents argued that site lighting would breach the local development plan

Policy 28, Fylde Borough Local Plan
“Proposals should avoid or minimise harm relating to loss of local character, loss of amenity.”

The policy notes say bright lights can cause a neighbourhood nuisance and inappropriate light can alter the character of a quiet rural area.

Public health

Cuadrilla argued that potential impacts on public health carried “very little weight as they are subject to careful control”.

Opponents cited the following policies to make their case that the impacts of health should be considered:

Paragraph 1, Planning Practice Guidance, Health and wellbeing
“Local planning authorities should ensure that health and wellbeing, and health infrastructure are considered in local and neighbourhood plans and in planning decision making.”

Para 144 of the NPPF
[Requires decision-makers to] “ensure, in granting planning permission for mineral development, that there are no unacceptable adverse impacts on the natural and historic environment, human health or aviation safety, and take into account the cumulative effect of multiple impacts from individual sites and/or from a number of sites in a locality”

Waste

Cuadrilla described the issue of waste treatment has “the most overblown issue at this inquiry”.

It said the onsite storage and offsite treatment of flowback fluid are subject to Environment Agency permit and wholly controlled.

Opponents argued that waste was an issue for the inquiry by quoting the following national and local policies:

Paragraph 7, NPPF
The planning system should help to “minimise waste and pollution”.

Paragraph 110, NPPF
“In preparing plans to meet development needs, the aim should be to minimise pollution and other adverse effects on the local and natural environment.”

Paragraph 143, NPPF
Local planning authorities should develop criteria to assess applications to “ensure that permitted operations do not have unacceptable adverse impacts on the natural and historic environment or human health, including from noise, dust, visual intrusion, traffic, tip- and quarry-slope stability, differential settlement of quarry backfill, mining subsidence, increased flood risk, impacts on the flow and quantity of surface and groundwater and migration of contamination from the site; and take into account the cumulative effects of multiple impacts from individual sites and/or a number of sites in a locality”.

Paragraph 10, Planning Policy Guidance Waste
Local planning authorities can help deliver the waste hierarchy [process of reducing waste] by “promoting sound management of waste from any proposed development, such as encouraging on- site management of waste where this is appropriate, or including a planning condition to encourage or require the developer to set out how waste arising from the development is to be dealt with”.

Paragraph 49, Planning Policy Guidance Waste
“Before granting planning permission, the local planning authority will need to be satisfied that the impacts of non-waste development on existing waste management facilities are acceptable and do not prejudice the implementation of the Waste Hierarchy. Where appropriate, the local planning authority may require additional waste management measures in order to facilitate the movement of waste management up the Hierarchy.”

Other regulators

Cuadrilla’s case

Cuadrilla argued that the inquiry should focus on noise, traffic and landscape impacts. Other impacts, such as waste disposal and impacts on public health, would be controlled by other regulatory regimes. It cited the following policy and rulings:

Written ministerial statement, 16th September 2015
[Planning authorities] “should carefully consider which issues can be left to other regulatory regimes, taking full account of the Government’s planning guidance on this issue”.

“The Government is confident we have the right protections in place now to explore shale safely (see Annex). Planning authorities can also have confidence that the regulators will enforce safety, environmental and seismic regulation effectively.

Paragraph 122 of the National Planning Policy Framework (NPPF)
“Local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively.”

Paragraph 112 of Planning Policy Guidance Minerals
“There exist a number of issues which are covered by other regulatory regimes and mineral planning authorities should assume that these regimes will operate effectively. Whilst these issues may be put before mineral planning authorities, they should not need to carry out their own assessment as they can rely on the assessment of other regulatory bodies.

Ruling in the case of Frack Free Balcombe Residents Association (FFBRA) versus West Sussex County Council
Mr Justice Gilbart concluded that:

“…the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant’s members have about the effects on the environment. The Claimant and its members’ concerns are in truth not with the planning committee’s approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee.”

Opponents’ case

Friends of the Earth told the inquiry Judge Gilbart, in the FFBRA case, did not say

“there is an irrebuttable presumption that matters which are addres to any extent by a regulator cannot be taken into account by the planning decision maker.”

Friends of the Earth said Cuadrilla’s case requires “the turning a very blind eye to the repeated use of the word “satisfied” in planning policy. It referred to:

Paragraph 28, Planning Practice Guidance Waste
“Before granting planning permission, the local planning authority will need to be satisfied that the impacts of non-waste development on existing waste management facilities are acceptable and do not prejudice the implementation of the waste hierarchy.”

Friends of the Earth said:

“While the decision maker should assume that the waste disposal regime will operate effectively, this does not give rise to an irrebuttable presumption, nor does it necessarily result in the decision-maker being satisfied in planning terms that the waste can satisfactorily be disposed of.”

Other issues

Cumulative effects Roseacre Awareness Group said the proposals breached the NPPF because of their cumulative effects:

Paragraph 144, NPPF
Local authorities should “ensure, in granting planning permission for mineral development, that there are no unacceptable adverse impacts on the natural and historic environment, human health or aviation safety, and take into account the cumulative effect of multiple impacts from individual sites and/or from a number of sites in a locality

Planning balance Policy DM2 requires: “A balance needs to be struck between the social, economic and environmental impacts of, and the need for, the development.”

Cuadrilla argued “factors weighing in favour of the development clear and demonstrably outweigh any negative factors”.

But opponents said the adverse impacts of operations could not be reduced to acceptable levels and so the applications should not permitted.

Exploration versus production

Paragraph 147, NPPF
Mineral planning authorities should when planning for on-shore oil and gas development, including unconventional hydrocarbons, clearly distinguish between the three phases of development (exploration, appraisal and production).

This report is part of DrillOrDrop’s  Rig Watch project.  Rig Watch receives funding from the Joseph Rowntree Reform Trust. More details here