Landmark Chambers

News

Court of Appeal dismisses Lancashire fracking appeals

DATE: 15 Jan 2018

Appeals by Preston New Road Action Group and Gayzer Frackman v Secretary of State & Cuadrilla [2018] EWCA Civ 9

This case involved the first horizontal wells approved for exploratory fracking in the UK.

Cuadrilla’s applications involved exploratory work that would be carried out over six years, after which there would be full restoration. The greatest landscape impact would be for a period of two and a half years. Following an Inquiry in February and March 2016, on 6 October 2016 the Secretary of State granted permission to Cuadrilla to carry out exploratory works at Preston New Road.

Preston New Road Action Group (acting through Mrs Susan Holliday) (“PNRAG”) and Mr Gayzer Frackman challenged the Secretary of State’s decision.

In the High Court, the claimants argued that:

a. The Environmental Impact Assessment should have considered the environmental impacts of both the exploratory stage and the full production stage that might be sought for in the future;

b. The public health impacts of fracking had not been properly considered according to the precautionary principle;

c. There was procedural unfairness as Cuadrilla had changed its argument away from the statement of common ground in its closing submissions at the last minute; and,

d. The development would conflict with various planning policies.

Dove J in the High Court [2017] EWHC 808 (Admin) rejected these arguments. 

The Court of Appeal (the judgment of which was given by Lindblom LJ) dismissed the appeals on 12.1.18 and provided a summary of its judgment:


“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.”

A copy of the judgment can be found here. 

David Elvin QC and David Blundell represented the Secretary of State.

Yaaser Vanderman acted for Cuadrilla.