Resident fights on for right to challenge Minister over Roseacre fracking inquiry

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BY RUTH HAYHURST ON APRIL 22, 2017

A Lancashire resident is seeking a High Court hearing after he was refused permission to challenge the Communities’ Secretary, Sajid Javid, over Cuadrilla’s second shale gas site at Roseacre Wood.

Jules Burton, who lives 500 metres from the proposed site, heard just before Easter that his court action had been blocked.

But yesterday his lawyers filed papers seeking a hearing to reconsider this decision.

The challenge centres on Mr Javid’s decision, announced in October last year, to reopen the public inquiry on Roseacre Wood.

Mr Javid said Cuadrilla had failed to provide adequate evidence that it had properly addressed highway safety issues which had led Lancashire County Council to refuse the Roseacre Wood planning application. The inspector at the original inquiry, Wendy McKay, had also recommended refusal on the same grounds.

Mr Javid said the reopened inquiry would give Cuadrilla the opportunity to “provide additional evidence”.

But Mr Burton described this as “irrational”, “tainted with bias” and an “abuse of power”.

He said it was “inconceivable” that the Secretary of State would allow an unsuccessful objector to present new evidence after an inquiry had closed. He also criticised the decision to replace Mrs McKay with a new inspector and said the Secretary of State should have considered the cost and stress to the local community of reopening the inquiry.

In a ruling dated 12 April, Mr Justice Dove said:

“I am satisfied that it would not be appropriate to grant permission in this case.”

But Mr Burton said today:

“I think the arguments in the papers filed at court yesterday are compelling and show why I believe Mr Justice Dove was wrong in his decision to strike the challenge without even giving it a chance to be heard.”

“Exceptional case”
The papers, filed with the High Court in Manchester, argued that reopening the inquiry was “truly exceptional”.

“Cuadrilla had had every opportunity before and during the inquiry to demonstrate that the proposed development would not have an unacceptable adverse impact on highway safety. It failed.

“However, instead of dismissing the appeal as recommended by his inspector, the Secretary of State has decided to re-open the inquiry to allow the appellant a further opportunity to put forward acceptable highway proposals.

“As far as the claimant [Jules Burton] is aware it is an unprecedented decision, akin to a court allowing an unsuccessful claimant the opportunity to amend its case and adduce new evidence after trial and judgment.”

“Conspicuously unfair”
The papers also said reopening the inquiry was against natural justice.

“For the Secretary of State to re-open the inquiry for the sole purpose of allowing Cuadrilla to repair the hole in its case by putting forward fresh proposals without first seeking the views of any party was conspicuously unfair.”

They said it was “so unusual” as to raise “an obvious possibility of bias”.

“The Secretary of State had no idea when he decided to re-open the inquiry what proposals and evidence Cuadrilla might come forward with. It was a matter of pure speculation that Cuadrilla might be able to show (against all experience) that satisfactory mitigation measures could be achieved.”

“Against procedure”
Mr Burton’s lawyers further argued that the decision to block the challenge went against planning procedural guidance.

They said this required an appellant – in this case Cuadrilla – to fully disclose its case in a written statement with supporting evidence before an inquiry opened. They quoted from Paragraph H.2.1, Planning Inspectorate: Procedural Guide Planning Appeals – England (August 2016) which stated:

“There is no opportunity to add to the statement during the process so the appellant should only make their appeal when they are certain that they have finished their case”.

Several legal challenges over onshore oil and gas decisions have been initially refused permission but have then received the go-ahead after an oral hearing. They include a request for a judicial review by Roseacre Awareness Group over approval of a monitoring scheme at Roseacre Wood and an upcoming case concerning an exploration licence extension.

Until this latest development, the reopened inquiry for Roseacre Wood had been scheduled for six-to eight days and was expected to begin on 10 April 2018. Cuadrilla had said it would use the time between now and the new inquiry to undertake further traffic surveys and assessments that would inform updated transport plans.

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