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Government’s approval for high volume hydraulic fracturing challenged in Court

Today sees the beginning of three days of legal argument in the co-joined cases of Preston New Road Action Group v Secretary of State for Communities and Local Government and Frackman v Secretary of State for Communities and Local Government. They are to be heard in the Administrative Court sitting in Manchester before Mr Justice Dove.

The Preston New Road Group challenge the Secretary of State's decision to grant planning permission for exploratory drilling works at Little Plumpton, Preston New Road, Preston. Mr Frackman challenges that decision, together with the report of the Inspector and Secretary of State concerning another site at Roseacre Wood, Preston.

The grounds of challenge in the Preston New Road Action Group claim are that the Inspector and Secretary of State:

  1. Misunderstood and thereby misapplied policy CS5 of the Lancashire Minerals & Waste Core Strategy.
  2. Failed to supply adequate reasons for finding the provisions of policy CS5 met.
  3. Misunderstood and thereby misapplied paragraph 109 NPPF.
  4. Acted in breach of natural justice by finding, in departure from the agreed statement of common ground, that policy EP11 Fylde Local Plan was not engaged by the appeal scheme.
  5. Misunderstood and thereby misapplied policy DM2 Lancashire Waste & Minerals Local Plan.

The grounds of challenge in the Frackman claim are that the Inspector and Secretary of State:

  1. Failed to consider the likely cumulative effects of the proposed development and operations on climate change and public health contrary to the EIA Directive 2011/92/EU.
  2. Acted irrationally and/or failed to apply the precautionary approach when determining whether all potential impacts on public health associated with the projects would be reduced to an acceptable level.

The High Court's eventual judgment will therefore explore a number of important aspects of determining applications for hydraulic fracturing, as well as the approach to development plan policies and the NPPF in the context of temporary developments.

Ashley Bowes is instructed (with David Wolfe QC) for the Preston New Road Action Group. Estelle Dehon is instructed (with Marc Willers QC) for Mr Frackman.