Double ‘no’ to fracking – Lancashire County Council refuses Cuadrilla’s two planning applications

01 Jan 2018

Estelle Dehon, who represented Friends of the Earth at two day-long closed hearings before the Committee on 18-19 June, said: “These applications brought into conflict two flagship government planning initiatives: on the one hand, the fast-tracking of ‘comprehensive exploration’ of fracking, and on the other, localism and responding to environmental concerns. After the Committee had heard hours of evidence and considered thousands of pages of documentation, localism and environmental concerns prevailed.”
Each application concerned the construction and operation of four wells, drilled from a single large well-pad, with each well being subjected to hydraulic fracturing (fracking). The operation was expected to run 24 hours a day, with fracking occurring for two months, followed by a three month initial period testing the flow of hydrocarbons (gas) and then 18-24 months of extended flow testing. The applications therefore concerned the largest scale high volume drilling and appraisal of fracking undertaken to date in the United Kingdom. The use of high volume drilling and fracking from horizontal wells meant the applications would be unlike conventional oil and gas exploration and also different from previous fracking that has taken place in the United Kingdom.

The key difference between the sites was location – the site at Preston New Road, Little Plumpton, has far better connectivity to the main transport network than does the site at Roseacre Wood, Roseacre. This made the difference for the planning officer who reported the applications to the Development Control Committee. He recommended refusal for the site at Roseacre Wood on grounds of “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”. On Friday 26 June, the Development Control Committee refused the Roseacre Wood application.

However, in relation to Preston New Road, the officer recommended approval. Friends of the Earth raised serious concerns in relation to the economic benefits and disbenefits of the proposed development; transport impact; landscape impact and impact on amenity (including noise and health impacts), and made submissions as to lack of compliance with the development plan and with national policy in these regards. The lack of consideration of cumulative impacts was also highlighted. Friends of the Earth also made submissions about the other side of the planning balance – need for the development – and addressed the committee on the climate change impacts of fracking, and well as the significant and documented uncertainties surrounding fracking (arising from basic problems with the process, such as well failure; the nature of the geology of the shale in Lancashire and the need to contemplate development at scale if fracking is to make a significant contribution to UK energy supply).

The Committee’s decision on the Preston New Road site emerged amid high drama over a number of days. On Tuesday and Wednesday 23-24 June, the Committee sat in public to consider the applications, but also went into private session on the Wednesday to receive legal advice. A motion to reject the application on the grounds of amenity and landscape impacts was tied, only being defeated by the chairman’s casting vote. It emerged that the legal advice had effectively warned members of the Committee that the Council would be vulnerable to a significant costs on appeal as refusal would be ‘unreasonable’. A subsequent motion to make the legal advice public was passed, but by the time the advice was produced it was after 5pm and the Committee decided to defer the application to Monday 29 June.

On resumption, members of the Committee suggested that the published advice was ‘not as strong’ as they had been led to believe. The Committee then adjourned to consider legal advices obtained by Friends of the Earth and the Preston New Road Action Group, both of which advised that it would be reasonable for the Committee to refuse the application and that such a decision would be capable of being defended on appeal. The Committee resumed and a councillor put forward that the application be approved, subject to additional conditions on the fracking process and health monitoring. The planning officer advised the further conditions were not appropriate and the motion was not supported. After further debate, the Committee voted to refuse the application by nine votes to three, with two abstentions.

The grounds of refusal, on the basis of unacceptable landscape impacts and unacceptable noise impacts, are significant:

  • 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 policies DM2 Lancashire Waste and Minerals Plan and Policy EP11 Fylde Local Plan.
  • The development would cause an unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP27 Fylde Local Plan.

The contention that noise could not adequately be controlled by condition was one of the submissions strongly made by Friends of the Earth, as well as by others. The suggested noise monitoring condition would have required Cuadrilla to appoint a “professionally recognised body or individual” to carry out the noise monitoring, in accordance with technical levels also set by condition. Friends of the Earth submitted that the mechanism for appointing such an “independent person or body” was imprecise and arguably unreasonable – no provision was made for the Council and Cuadrilla failing to agree on who should be appointed and it was entirely unclear how and in what capacity Cuadrilla was expected to “appoint” such a person. The Committee could not have confidence that the crucial suite of conditions on noise would be enforceable or indeed whether they were even legal in their proposed form. Furthermore, if the Council could not monitor noise other than by co-opting the developer to carry out the monitoring, then it was questionable whether any form of condition on noise could legally be imposed.

Cuadrilla has indicated that it will take time to consider whether to appeal the refusal. Should an appeal be pursued, a maelstrom of significant and competing pressures will be brought to bear on the decision-maker. It will be interesting to see whether the matter will be called in by the Secretary of State so that he makes the decision, or whether it will be left for a planning inspector to hear. The fracking industry has already reacted to the refusal by calling on the government to “urgently review the process of decision making” (statement by Ken Cronin, Chief Executive of the fracking trade body the UK Onshore Operators Group). In the next stage of decision-making, it remains to be seen whether localism and environmental concerns will continue to prevail over the manifesto commitment to “a significant expansion in new gas” and support for fracking.