This case involved the first horizontal wells approved for drilling, fracking and testing shale rock in the UK.
Yesterday, the High Court (Dove J) rejected challenges to planning permissions granted to Cuadrilla for exploratory works at Preston New Road, Lancashire.
Cuadrilla’s applications involved 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.
On 29 June 2015, the planning committee at Lancashire County Council refused these applications. This was based on the adverse impact on: (a) the landscape; and, (b) the visual amenity of local residents; and, (c) the highway network and road users.
Cuadrilla appealed and the Secretary of State directed that he would determine the appeals, due to the major importance of the applications and because they raised important or novel issues and/or legal difficulties. 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 applied for statutory review of the Secretary of State’s decision, pursuant to s288 of the Town and Country Planning Act 1990.
PNRAG argued that the decision was flawed in respect of the approach to landscape harm and residential amenity. In particular, it was argued that the temporary nature of the harm could not prevent breach of the relevant policies. Moreover, breach of natural justice was argued on the basis that Cuadrilla had changed its position during the Inquiry without PNRAG having a chance to respond.
Mr Frackman argued that the Secretary of State failed to consider the cumulative effects of both the exploratory works and any future production works that may take place on climate change and public health. This was said to be a breach of Directive 2011/92/EU. He also argued that the Secretary of State irrationally found that all potential impacts on public health could be reduced to acceptable levels, particularly taking into account the precautionary principle.
Dove J dismissed the claimants’ arguments.
With respect to PNRAG, he found that, in the context, the temporary nature of the harm could prevent breach of the relevant policies. Moreover, in light of the cross-examination of PNRAG’s counsel at the Inquiry, it knew about Cuadrilla’s change of position and had the chance to respond.
With respect to Mr Frackman, the exploratory works were limited in time and purpose. Future production works would require a new environment statement. There was, therefore, no breach of the EIA Directive. Moreover, it was unarguable that the Secretary of State had acted irrationally in relying on the regulatory regime to protect against impacts on public health.
Nathalie Lieven QC and Yaaser Vanderman appeared for Cuadrilla
A copy of the judgment can be found here.