Fracking cases to be heard by Court of Appeal
Jackson LJ has granted Preston New Road Action Group and Gayzer Frackman permission to appeal to the Court of Appeal. Dove J had previously dismissed their challenges to the Secretary of State’s decision to grant Cuadrilla planning permission to undertake hydraulic fracturing and extended flowtesting of the Bowland shale near Preston in Lancashire.
The case will present the Court of Appeal with the opportunity to consider how reversible harm arising from temporary energy projects, like exploratory hydraulic fracturing, should be assessed against the development plan and national policy. In particular, Jackson LJ noted when granting permission that the proper approach to paragraph 109 NPPF in decision taking, concerning valued landscapes, was a matter of “general public importance”. The case will also consider the obligations upon a party which choses to resile from propositions agreed in the statement of common ground, especially in long inquiries with multiple parties who depend heavily upon the agreed statement to advance their cases.
Mr Frackman’s appeal was also described as raising issues of “general public importance”. It will provide the Court with the opportunity to assess whether the cumulative impacts of fracking on climate change (because of admitted greenhouse gas emissions) were properly taken into account. It will also consider how the environmental impact of the “extended flow testing stage” should be assessed in the determination of a planning application for exploratory fracturing. Further, the Court will consider whether evidence of the health impacts of fracking should have required a precautionary approach to to granting planning permission and whether the Secretary of State acted rationally to rely upon other regulatory regimes when concluding that the health risks of fracking could be controlled.
Ashley Bowes (together with David Wolfe QC) is instructed by Leigh Day for Preston New Road Action Group. Ashley had previously appeared for the Group at the five-week public inquiry.
Estelle Dehon (together with Mark Willers QC) is instructed by Richard Buxton Environmental & Public Law for Mr Frackman. Estelle had previously appeared for Friends of the Earth in the inquiry.