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Planning Court rejects North Yorkshire fracking challenge

DATE: 20 Dec 2016

In a judgment given in the Planning Court today, Mrs Justice Lang has dismissed a claim for judicial review brought by Friends of the Earth and local campaigners challenging the first planning permission granted for fracking in North Yorkshire.

North Yorkshire County Council had granted planning permission to Third Energy UK Gas Ltd to extract shale gas at a site in Kirby Misperton, Ryedale. It was the first fracking operation to be approved in England since a ban was lifted by the UK Government in 2012.

The claimants alleged that the County Council had failed to take account of the carbon dioxide emissions that would be generated by burning the produced gas at a power station elsewhere in the county in Knapton. They also submitted that the provision made to fund remedial works was so deficient as to be unlawful.

Mrs Justice Lang rejected those arguments. On the issue of carbon dioxide emissions, the judge considered it “particularly significant that the Environment Agency, which has responsibility for regulating Knapton, did not advise that the impact of the emissions from Knapton ought to be assessed” [35]. The judge added:

“39. The application for planning permission did not include any development at Knapton. Knapton already had planning permission and it was already authorised by the Environment Agency to burn gas from existing well sites, thus generating potentially harmful emissions, including carbon dioxide. No increase in capacity at Knapton was sought as part of this proposal. Any gas produced from the KMA well site and piped to Knapton would be within the existing limits of the permits already conferred by the Environment Agency. Paragraph 122 of the National Planning Policy Framework (“NPPF”) advises planning authorities that they should focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes, and it should be assumed that those regimes will operate effectively. The gas supply from KMA would be indistinguishable from the gas piped from other well sites, and so its environmental impact could not be separately quantified. The argument that the proposed development was an integral part of a more substantial project which included Knapton was rightly abandoned by the First Claimant. Applying the guidance given in Hardy and Blewett, I do not consider that the Claimants have established any defect in the ES or any error of law in the Council’s reliance upon it.”

BBC NewsITV News and The Guardian are covering the judgment.

Sasha White QC and Gwion Lewis acted for the Defendant, North Yorkshire County Council

Nathalie Lieven QC acted for the Interested Party, Third Energy UK Gas Ltd.