Minister defends consent for Cuadrilla’s fracking site on second day of legal challenge

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Lawyers for the Communities’ Secretary have been defending his decision to grant planning permission for Cuadrilla’s fracking plans near Blackpool.

In October 2016, Sajid Javid approved the company’s scheme to drill, frack and test up to four wells at Preston New Road, Little Plumpton.

A residents group and a local campaigner went to the High Court in Manchester this week to challenge the decision, arguing that was unlawful and should be quashed.

Preston New Road Action Group (PNRAG) said Mr Javid had misunderstood or misapplied local and national planning policy in approving the fracking scheme.

Campaigner, Gayzer Frackman, from Lytham, argued that the minister’s decision failed to consider climate change and gaps in regulations to protect public health.

PNRAG said Mr Javid had incorrectly concluded that Cuadrilla’s plans complied with a strategic minerals policy in Lancashire called CS5. This is designed to protect and enhance culturally-important landscapes from being harmed by minerals developments.

But this morning Rupert Warren QC, for Mr Javid, said the Secretary of State’s approach had been “unimpeachable”. He said the minister had noted there would be harm to the landscape in two-and-a-half years of the scheme but that the harm would be mitigated and reduced to an acceptable level.

PNRAG had also argued that Mr Javid should have refused permission because he mistakenly found the scheme complied with paragraph 109 in the National Planning Policy Framework. This says the planning system should contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes.

Mr Warren said the Secretary of State had accepted the reasoning of the inspector at the public inquiry who had recommended approval of the project. She had said there would be harm to valued landscapes but it would temporary and the landscape would be restored.

Yesterday, the court heard how PNRAG also challenged the inspector’s view that the fracking site would not breach another Lancashire planning policy, DM2, aimed at protecting local residents.

This says minerals operations would be supported where harm could be eliminated or reduced to acceptable levels or where the operations made a positive contribution to residential amenity.

The inquiry inspector had said the site would not make the outlook for local residents so “unpleasant, overwhelming and oppressive” that it would become an unattractive place to live.

David Wolfe QC, for PNRAG, said this was a very high threshold and the wrong test to apply to the policy.

But Mr Warren responded:

“There is no regulation or legal test which has a threshold on it beyond which the impact on residential amenity is unacceptable.”

PNRAG had also said Mr Javid had treated the group unfairly by not taking into account another local planning policy – EP11. This was used by Lancashire County Council to refuse the planning permission in June 2015 and says developments in the countryside should reflect the local vernacular style.

Nathalie Lieven, QC, for Cuadrilla, said:

“It would be impossible to make a drilling rig meet that policy and it was very plain that this policy was never intended to apply to the development in question.”

Climate change impact and regulatory gaps
The second challenge to the Secretary of State focussed on regulation and climate change impacts.

Mr Frackman, a Lancashire anti-fracking campaigner who changed his name by deed poll, said Mr Javid should have taken account of all the greenhouse gas emissions from the shale gas development at Preston New Road.

The court heard yesterday how Cuadrilla had given estimates of emissions from initial flow tests on the four wells. But it had not calculated the greenhouse gas emissions from the burning of gas produced from extended well tests, which would be piped into the gas main.

Marc Willers QC, for Mr Frackman, had said the exploration scheme was “production in disguise” and the emissions from gas produced in the extended well tests should have been accounted for in the environmental impact assessment.

Without this assessment, he said:

“It would leave the government’s climate change policy, the carbon budget set down in the Climate Change Act, and the Paris Agreement in tatters.

“We would have unassessed, unabated production of shale gas – and even other fossil fuels because you could extend the argument – without any regard to the Environmental Impact Assessment Directive or our climate change obligations.”

But Ms Lieven said this was a “completely flawed” argument. She said:

“The whole assumption is that this is new, additional gas that is being burned.

“There is no evidence on the degree to which Cuadrilla gas going into the network is additional gas being burned, producing additional greenhouse gas emissions. That calculation would be simply impossible to do.”

Whether shale gas should be a substitute for other gas was an issue for national energy policy, she said, not an issue for planning or environmental impact assessments.

Mr Willers had also argued that the Secretary of State should have applied the precautionary principle and refused permission because there were gaps in the regulatory system for shale gas. He said the argument by the inquiry inspector that there were no risks to health from the shale gas scheme was “irrational”.

Mr Warren replied:

“I don’t accept the Secretary of State failed to have regard to the precautionary principle.”

And Ms Lieven said the inquiry inspector, accepted by the Secretary of State, had concluded there would be no unacceptable impacts on human health and that the regulatory system would operate to control them.

What happens next?
The hearing closed at just before 5pm, exactly a year after the final day of the public inquiry into the plans.

The judge, Sir Ian Dove, said he would produce his judgement as soon as possible but was unable to give an estimate of when that would be. He told the legal teams, which comprised eight barristers, as well as solicitors and advisers:

“You have all raised a great deal of interesting food for thought. I need to give my time to do justice to them.”

He said he was pleased the hearing had been held in Manchester, closer to the area of Cuadrilla’s site. He added:

“I will knuckle down now. You can go away having finished your hard work. Mine now starts.”

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