Judges reject fracking appeals but campaigner vows to go to Supreme Court

The Court of Appeal has rejected a legal challenge to the Secretary of State for Communities and Local Government’s decision to grant planning permission for exploration works to test the feasibility of “fracking” at two sites in Lancashire.

Following an inquiry, the Secretary of State granted permission in October 2016 for the works to be carried out. This was after Lancashire County Council refused Cuadrilla's application.

In April 2017 Planning Court judge Mr Justice Dove rejected a legal challenge brought by campaigner Gayzer Frackman and the Preston New Road Action Group (PNRAG).

In Preston New Road Action Group v Secretary of State for Communities & Anor [2018] EWCA Civ 9 the Court of Appeal last Friday (12 January) also dismissed the appeals made by Frackman and the PNRAG.

The Court summarised its ruling as follows:

1. The appeals in this case were against the decision of the Secretary of State for Communities and Local Government, in October 2016, to grant planning permission on two sites in Lancashire for proposals by Cuadrilla for exploration works to test the feasibility of extracting shale gas by “fracking”. At an inquiry held by an inspector, the proposals had been opposed by the appellants, the Preston New Road Action Group and Mr Gayzer Frackman. Their challenges to the Secretary of State’s decisions were rejected by Dove J. in April 2017. For the full reasons given in its judgments handed down today, the Court of Appeal has dismissed both appeals.
2. The court noted that although the proposals were concerned only with exploration for shale gas, and not with its commercial extraction, they had attracted strong opposition in the local communities affected by them. It also emphasized, however, that its task was not to consider whether the Secretary of State’s decision was right, but only to decide whether he had committed any error of law.
3. In the appeal brought by the action group, the first issue was whether the Secretary of State made any error of law in concluding that the proposals complied with Policy CS5 of the minerals core strategy, because the harm to the landscape would only be temporary. The court held that the policy was neither misinterpreted nor misapplied. The second issue was whether the Secretary of State had misunderstood or misapplied Policy DM2 of the minerals local plan. The court held that he had not. The third issue was whether the Secretary of State misinterpreted the policy in paragraph 109 of the National Planning Policy Framework, which says that the planning system should “protect and enhance valued landscapes”. Again, the court held that he did not. The fourth issue was whether there had been any breach of procedural fairness after Cuadrilla, at the inquiry, had changed their position on the relevance of Policy EP11 of the Fylde Local Plan. The court held not. The action group had had an ample opportunity to participate in the inquiry process, with the benefit of representation by experienced planning counsel.
4. In the appeal brought by Mr Frackman, the first issue was whether the Secretary of State had neglected the requirement – under the regime for environmental impact assessment (“EIA”) – for an assessment of “indirect”, “secondary” and “cumulative” effects. The court noted that any future proposal for the commercial extraction of shale gas would be subject to a distinct and separate EIA. Cuadrilla’s environmental statement for this project was not flawed by the lack of an assessment of the effects of greenhouse gas emissions in the extended flow testing phase. The second issue was whether the assessment had been undertaken “at the earliest possible stage”. The court held that it had. The third issue was whether the Secretary of State had taken into account the potential benefits of shale gas production, but not the harm it would cause to the environment. The court found this contention to be mistaken. And the fourth issue was whether the Secretary of State had erred in his consideration of the possible effects of the proposed development on human health and in assuming that the relevant regulatory regime would operate as it should, and that he had failed to apply the “precautionary principle”. The court rejected these arguments too.

Mr Frackman immediately announced his intention to appeal the ruling the Supreme Court.

Estelle Dehon, environmental law barrister at Cornerstone Barristers and a member of Mr Frackman’s legal team, said: “Given the serious impact of climate change, it is imperative that the government requires developers to make a proper assessment of the greenhouse gas impacts of development. This is especially important where exploration seeks to pave the way for a new form of fossil fuel to be exploited. There is no logic in granting permission for shale gas exploration if the production phase will emit so much carbon and methane that its environmental impact is unacceptable.”

Marc Willers QC from Garden Court Chambers, who also represented Mr Frackman, said: “This is the first case in which a court has had to consider whether planning permission can be granted for shale gas exploration wells without the need to take account of the greenhouse gas emissions that will result from shale gas production at the same wells.

“It is important that this issue is considered by the Supreme Court at a time when the shale gas industry is still in its infancy. We intend to seek permission to appeal to the Supreme Court so that it can do so.”

The PNRAG said it was deeply disappointed at the Court of Appeal ruling.

On its website it said: “Our community has been marginalised and dismissed in favour of a decision made in the depths of Westminster.

“Over 100,000 people objected to this fracking application. In addition, our parish council, Fylde Borough Council and Lancashire County Council rejected the application. They had a duty of care to local residents and they fulfilled that duty. They determined that the risks of this industry far outweighed any benefits to the local community.”

The PNRAG added: “By overruling Lancashire County Council, this decision only benefits big business. The last three years of this fracking challenge process has damaged democracy and trust in politicians, leaving our community feeling vulnerable and unrepresented.

“We will now take time to scrutinise the decision documents and liaise with our legal team. Our end goal has not changed: we are still intent on achieving justice for the Preston New Road community and beyond.”