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Court of Appeal decides fracking challenge

In a combined judgment, handed down on Friday 12 January, Lindblom LJ (with whom Simon and Henderson LJJ agreed) dismissed statutory review proceedings brought by the Preston New Road Action Group and Mr Frackman to the grant of planning permission for exploratory works and hydraulic fracturing of wells at Little Plumpton, Preston New Road, Lancashire.

The Action Group's Claim

The Action Group had argued that the finding of landscape harm during the project was irreconcilable with a finding there was no breach of either the development plan policy which required the landscape to be "protected from harm", and paragraph 109 NPPF which requires that valued landscapes be "preserved". Lindblom LJ found that reading policy CS5 Lancashire Waste and Minerals Plan as a minerals policy it was inevitable there would be some short-term harm and, when read with other policies of the plan, which required harm be reduced to an "acceptable level", a finding of harm did not preclude a finding that the scheme accorded with the development plan.

Furthermore, Lindblom LJ found that Dove J was correct to find that paragraph 109 NPPF was a "high order strategic policy of the planning system as a whole" and was to be read with the development plan policies which implemented its objectives. As such, a finding that there was harm to the landscape did not mean that the valued landscape was not "preserved" "in the long term" when considered with the restoration scheme. This purposive construction of both minerals policies in the development plan and the NPPF will make temporary projects, such as exploratory hydraulic fracturing projects, easier to promote.

The Action Group also contended that it was disadvantaged by the Secretary of State finding that another landscape policy (policy EP11 Fylde Local Plan) was not engaged, in-spite of the Appellant agreeing the policy was engaged in the statement of common ground and affirming the statement of common ground in cross-examination. The Court found that, notwithstanding the developer had not amended the statement of common ground, it had trailed the point in a proof of evidence and in cross-examination sufficiently such that there was no unfairness in the Secretary of State's conclusion. This will have potentially significant implications for the conduct of inquiries and the role of the statement of common ground assisting parties to take a full role in the appeal proceedings.

Mr Frackman's Claim

Mr Frackman argued that there had been a failure properly to carry out a proper environmental impact assessment ("EIA") because the direct impact of greenhouse gas emissions from the "extended flow testing" phase of the development (when gas would be pumped into the grid) had not been taken into account, nor had the indirect and cumulative greenhouse gas impacts of the project from any later shale gas production which would take place on the Preston New Road site.

The Court emphasised that the "project" for which permission had been given was for exploration for shale gas. Any later production that would take place at the site would be a different project and would be subject to a separate EIA. Further, the Court held that it was not possible accurately to assess the effects of the production phase because it would only be undertaken if sufficient recoverable reserves of shale gas were discovered during the exploration phase. It would be premature to require assessment of the impacts of production.

Focusing on the extended flow testing phase of the exploration, the Court held that the Secretary of State was entitled to assume that this would not increase the volume of gas burned in the UK because the gas supplied to the grid would be an indistinguishable part of the existing supply of gas, not additional to that supply.

Mr Frackman also argued that the Secretary of State had failed properly to apply the precautionary principle, which requires that planning permission be refused where there is a real likelihood of harm to public health if a risk materialises, but it is impossible to know whether the risk will occur because of scientific uncertainty. The Court held that the existence of uncertainty in relevant scientific knowledge of the health impacts of fracking was not sufficient to rebut the presumption, in paragraph 122 of the National Planning Policy Framework, that regulatory regimes will operate effectively. There were no objections from the relevant statutory consultees and the court would be slow to interfere where the decision-maker has received scientific advice.

Mr Frackman has indicated he will approach the Supreme Court for permission to appeal.

Dr Ashley Bowes was instructed with David Wolfe QC for the Action Group by Leigh Day.

Estelle Dehon was instructed with Marc Willers QC for Mr Frackman by Richard Buxton Public & Environmental Law.

The Cornerstone Hydrocarbon Group has been involved with the Lancashire Fracking sites since 2015, and five members of that group represented various parties at the 2016 inquiry.

A copy of the judgment Preston New Road Action Group & Frackman v Secretary of State for Communities & Local Government [2018] EWCA Civ 9 can be found here.