Lawfulness of fracking works

For some, fracking (hydraulic fracturing of subterranean rocks to extract oil or gas) is an environmental swear word. For others it is a low carbon solution to the country’s energy problems.

But the lawfulness of proposed exploration works to test for the feasibility of extracting shale gas by fracking at two sites in Lancashire was put under the judicial microscope by the Court of Appeal on 12 January. The case in question was Preston New Road Action Group  v Secretary of State for Communities and Local Government and another; Frackman v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 9. The lead judgment was given by Lindblom LJ, with which Simon and Henderson LJJ agreed.

Background

Two Cuadrilla companies (Cuadrilla) proposed to undertake exploration work, including exploratory wells and associated monitoring to test the feasibility of commercial extraction of shale gas on two sites: Plumpton Hall Farm, off Preston New Road (site 1) and Roseacre Wood (site 2), with restoration to agriculture afterwards. Lancashire County Council refused permission for both exploration and monitoring at site 1 but granted conditional planning consent for monitoring works at site 2. Following a planning inquiry (which recommended allowing the site 1 appeals but dismissing that for the exploration works at site 2) the secretary of state allowed appeals in respect of site 1 but decided to reopen the inquiry for site 2 to enable Cuadrilla to submit further evidence on highway capacity and safety. The secretary of state said he was minded to allow the site 2 appeal if the new evidence was satisfactory. Challenges in respect of both sites under section 288 of the Town and Country Planning Act 1990 were dismissed by Dove J in March 2017.

Appeals

Both appeals consequently came before the Court of Appeal. The first (concerning site 1) was by the Preston New Road Action Group. The second (for both sites) was brought by Gayzer Frackman (apparently originally named Gayzer Tarjanyi).

The first concerned whether the secretary of state had misconstrued and misapplied the minerals core strategy, the minerals local plan and the National Planning Policy Framework. Also contended was that the decision of the secretary of state was vitiated by unfairness because he concluded that Policy EP11 of the Fylde Local Plan was not engaged by the proposals, without giving the parties the opportunity to comment on that conclusion.

The second appeal addressed the following four main issues: whether (in relation to Directive 2011/92/EU, as amended (the EIA Directive)), the secretary of state failed to heed the relevant principles on ‘cumulative effects’; whether the secretary of state failed to act according to the Environmental Impact Assessment (EIA) principle that potentially significant effects on the environment ought to be taken into account at the earliest possible stage; whether the decisions of the secretary of state are flawed by inconsistency because he took into account the benefits of shale gas production but left out of account the harmful effects it would have; and whether the secretary of state ‘failed to apply the “precautionary principle” [preventative decision-taking in the case of risk] over the possible effects of the development on human health and assuming that the regulatory regime would operate effectively.’

Court’s view

Lindblom LJ noted that, although the proposals were concerned only with exploration for shale gas and not with its commercial extraction, they have nevertheless attracted strong local opposition. However, he cautioned that the court’s task is not to consider whether the decision of the secretary of state was right, but merely whether it was lawful. This must be done in the light of ‘well-established principles governing the review of planning decisions’, recently confirmed by the Court of Appeal in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643. Lindblom LJ referred in particular to paragraph 6 of his judgment in that case where he said (among other things) that:

• ‘Decisions of the secretary of state and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way’ and ‘an inspector does not need to “rehearse every argument relating to each matter in every paragraph”’.
• ‘The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759). And, essentially for that reason, an application under section 288 of the 1990 act does not afford an opportunity for a review of the planning merits of an inspector’s decision… ’ (per Sullivan J, as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74).
• 'Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context.’

In the instant case, Lindblom LJ said that a court risks exceeding its proper role ‘if it neglects the basic distinction between discerning the meaning of a planning policy – read in its “proper context” [per Tesco Stores Ltd v Dundee City Council [2012] UKSC 13] and with common sense – and bringing public law principles to bear on the application of that policy in a planning decision’. It must also ‘not step too far in interpreting policies written for planning decision-makers, in language intended to inform their exercise of planning judgment, not for judges considering the lawfulness of a planning decision when challenged’.

In all the circumstances, the court rejected all the contentions submitted by both appellants and affirmed the decision of Dove J in respect of both appeals. In respect of the first appeal, the court found that there had been no misapplication or misconstruction of the relevant policies and that in addition the ‘procedure was, at every stage, fair’.

As to the second appeal, the court found no relevant evidence to substantiate shortcomings in the EIA nor any evidence of any likely material increase in greenhouse gas emissions. Neither was there any other likely significant effect on the environment that ought to have been addressed in the EIA but was not. The argument that the conclusions of the inspector and secretary of state were at odds with the ‘precautionary principle’ was also rejected, since both ‘were satisfied that the relevant regulatory controls would operate effectively to prevent harm to the environment and to human health arising from the proposed development, where such harm lay beyond the reach of the statutory planning regime’. In the court’s view this was a perfectly rational planning decision conclusion. The second appeal was consequently also rejected.

Both appeals having been dismissed, the court also saw no justification for the case to be referred to the Court of Justice of the European Union. This was because the contentious matters were ‘acte clair (no need to refer where law clear enough), and there was no scope for reasonable doubt as to the answers to be given’.

Comment

Despite the judgment of the Court of Appeal, fracking remains controversial and the Lancashire proposals attracted local objection. It is understood that Mr Frackman’s lawyers were planning to seek permission to appeal the case to the Supreme Court.  If they do manage to obtain permission, clouds of legal uncertainty look likely to be louring over fracking for some time yet.