BY RUTH HAYHURST ON AUGUST 31, 2017
Lawyers for the government today defended the decision to give the go-ahead to Cuadrilla’s Lancashire shale gas site and the UK’s first horizontal fracking wells.
They were responding to calls from a community group and anti-fracking campaigner for consent to be quashed for the operation at Preston New Road near Blackpool.
The Communities Secretary, Sajid Javid, granted planning permission in October 2016 to Cuadrilla to drill, frack and test four wells. This followed a 19-day public inquiry and overturned a refusal of consent by Lancashire County Council.
The Preston New Road Action Group (PNRAG) and campaigner, Gayzer Frackman, took two separate legal challenges to the Secretary of State’s decision, both of which were dismissed earlier this year by a High Court judge.
Yesterday at the Court of Appeal, Mr Frackman argued that the Secretary of State’s decision had failed to follow European law or the precautionary principle (see DrillOrDrop report). PNRAG argued that in reaching his decision the Secretary of State had misapplied local and national planning policy (see DrillOrDrop). The group also said there had also been an unfair procedure at the planning inquiry which had prejudiced its case.
Lawyers for the Secretary of State and Cuadrilla argued today that both appeals should be dismissed. Cuadrilla urged the three judges hearing the appeal to make a speedy decision.
Effects of fracking
Mr Frackman had argued that permission should not have been granted for Preston New Road because the EU directive on environmental impact assessments had not been complied with. His case was that the impacts of all cumulative and indirect effects of a development should be assessed as early as possible.
His barrister, Marc Willers QC, said Cuadrilla should have assessed the greenhouse gas emissions for any future gas production at Preston New Road. He said production was an “end product” of exploration.
David Elvin QC, for the Secretary of State, said greenhouse gas emissions of shale gas production would be taken into account in a future planning application. He said:
“The purpose of the exploration application is to assess the resource. If there are subsequent applications they will be assessed.”
Production, he said, was a separate project and the impacts could not be known at this stage.
Nathalie Lieven QC, for Cuadrilla, said knowledge, not gas production, was the end product of exploration. The company would learn about the likely scale of production, flow rates and volumes she said.
But Mr Willers, in his summing up, said there would be little difference between production and exploration at Preston New Road. He said the company would be producing gas during the three-years of extended flow tests.
“They will turn the gas off, apply for permission for production and if they get permission turn the tap back on.”
Mr Willers said Cuadrilla should also have assessed the greenhouse gas emissions during the extended flow testing phase when shale gas will be piped into the grid to be burned in homes and businesses.
Ms Lieven said that assessment had not been asked for by the county council or the planning inspector.
“Such an assessment is not legally required and cannot give rise to an error in law.”
It would be indistinguishable from existing gas, she said.
“In those circumstances there is no evidence that there will be any increase in gas usage by reason of the gas going into the gas network and therefore no evidence that the greenhouse gas emissions would increase one iota.”
She rejected the argument used by Mr Willers that the Committee on Climate Change (CCC) had said in a report that shale gas production must not lead to an increase in domestic gas consumption.
The CCC’s report was advice to government on policy about the compatibility of shale gas production at scale and the UK Climate Change Act targets, she said.
“It is not a legal text that needs to be satisfied in development control.”
Mr Willers said the court had an obligation under the EIA directive to correct the errors in the assessment on carbon footprint.
Mr Willers, for Mr Frackman, had also argued that the precautionary principle had not been applied properly. He said this was because of uncertainty about the health impacts of shale gas operations and what he said was the failure of the regulatory regime to control risks.
Mr Elvin said today:
“The Secretary of State does not accept that there was uncertainty in scientific knowledge. … Overall the evidence does not demonstrate any such certainty.”
Ms Lieven, for Cuadrilla, said:
“There is extensive reference to a number of bodies, including Public Health England and the Royal Society, all of whom of have a consistent theme that public health could be protected through the regulatory regimes.”
Local and national policy
Yesterday, the court heard arguments from Preston New Road Action Group that the shale gas plans conflicted with two policies in the Lancashire development plan and a paragraph in the National Planning Policy Framework (NPPF).
Mr Elvin, for the Secretary of State, said planning policy should not be approached as a contract.
“It has to be approached with flexibility, taking account of the impact and degree of harm. This is an issue of planning judgement.”
He said the Secretary of State had to decide not whether there had been a breach of one policy but whether had been a breach of the development plan as a whole and in context.
Mr Elvin said:
“The planning inspector at the public inquiry had found that there would be an adverse impact on a valued landscape but in the light of the temporary nature of the development and mitigation and restoration proposals concluded there would be no conflict in the long=term with the aim of the NPPF to conserve and enhance the natural environment”.
One of the polices, DM2, said mineral developments would be supported where:
All material social, economic and environmental impacts were reduced to acceptable levels
There was a positive contribution to issues such as residential amenity.
PNRAG said the Secretary of State had ignored the second point of the policy.
Mr Elvin said there was an overlap between the two points and they should be read together.
Ms Lieven said the planning inspector had recognised that there were obvious limitations on what could achieved with the design for a shale gas site.
“When you are introducing a 36m drilling rig into the countryside there are limits on what you can achieve to limit its impact.”
Dr Wolfe, for PNRAG, argued in his summing up that the inspector had misunderstood the importance of the second point and saw a “positive contribution” as merely requiring mitigation.
The court also heard claims that Preston New Road Action Group had been treated unfairly at the inquiry because Cuadrilla had changed its argument over another local planning policy.
The company had accepted in the statement of common ground that policy EP11 of the Fylde Local Plan, which deals with development in the countryside, was applicable to the Preston New Road application. But in its summing up, after PNRAG had made it closing statement, the company argued the opposite. PNRAG said it had not been informed about the change and had no opportunity to address the inquiry.
Mr Elvin, for the Secretary of State, the change had been “sufficiently raised at the inquiry” and if there had been prejudice then the county council dealt with all the issues in its closing statement to the inquiry.
Ms Lieven, for Cuadrilla, said PNRAG had not been treated unfairly. But even if it had this would not have made any difference to the outcome, she said, because policy EP11 could not apply to shale gas sites. No further submissions from PNRAG could have affected this conclusion, she said.
Dr Wolfe, for PNRAG, said the inspector had recognised that Cuadrilla’s proposal was in conflict with policy EP11. The only reason she said the proposal was not in conflict with the development plan was because EP11 was not applicable.
“That’s why the applicability question – not weight or meaning of the policy – is so crucial”.
The three judges, Lord Justice Simon, Lord Justice Lindblom and Lord Justice Henderson, said judgement would be reserved until a later date. They gave no indication of when this would be but Lord Justice Simon recognised the “real concern about this case”.
This evening a spokesperson for Preston New Road Action Group said:
“Our goal remains as always: to achieve true justice for our community and the people of Lancashire.
“Our case this week has been centred on specific points of law, surrounding the decision by the Secretary of State to overturn Lancashire County Council’s democratic refusal of Cuadrilla’s planning applications.
“The people of Lancashire have spoken loudly and clearly, refusing this industry that does not hold any social license here.
“The conditions of operation for this development have not been adhered to, evidenced by the deliberate and pre-meditated breach where Cuadrilla brought in around 30 HGVs at 04.45hrs one morning.
“The current situation at Preston New Road is critical and after four years of consistently showing that there is no social license to frack, we now trust that English justice will finally be delivered and we get our community back.”
“Preston New Road Action Group reaffirms there is credible evidence of risk and harm arising from the fracking industry that has not been fully explored. The group welcomed the opportunity to present crucial information at the highest level.”