Town and country planning – Planning permission – Fracking – Claimants applying for judicial review of decision of defendant local planning authority to grant planning permission to interested party to carry out fracking – Whether defendants failing to consider assessment of impact of material indirect/secondary/cumulative climate change – Whether defendants misdirecting themselves on requirement to provide financial bond in relation to long-term environmental pollution impacts – Application dismissed
The defendant granted the interested party petroleum exploration and development licences on a site known as the KML well site at Alma Farm, Kirby Misperton, North Yorkshire. In November 2014, the interested party announced plans to move beyond its exploration of the site to the production stage of releasing the gas discovered. As the proposed development required environmental assessment, under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the interested party applied to the defendants for a scoping opinion which was issued in April 2015. The interested party then applied to the defendants for planning permission to hydraulically stimulate and test various geological formations previously identified, followed by the production of gas from one or more of the formations into existing production facilities. The application for planning permission was accompanied by a detailed environmental statement based on the defendants’ scoping opinion. The defendants’ Planning and Regulatory Functions Committee resolved to grant planning permission in May 2016 and issued a decision notice to that effect.
The claimants applied for judicial review of the decision to grant planning permission to carry out hydraulic fracturing (“fracking”). They contended that the defendants had: (i) unlawfully failed to take into account, in their consideration of the environmental impacts of the proposed development, an assessment of the material indirect/secondary/cumulative climate change impacts arising from the burning of gas in the production phase of the development; and (ii) misdirected themselves in law that they could not require the interested party to provide a financial bond in relation to any long-term environmental pollution impacts arising from the fracking.
Held: The application was dismissed.
(1) On the evidence, the claimants’ submission, that the terms of the scoping opinion had required the environmental statement to assess the environmental impacts arising from the burning of the gas in the production phase of the development, had been incorrect. It was entirely clear from the scoping request that the interested party had not considered that the environmental impact assessment in respect of the production phase should include any assessment of the environmental impacts of burning gas. In the absence of any express reference to the impact of the emissions, either in the scoping request or in any of the representations or anywhere in the opinion, it could not be inferred that the scoping opinion’s broadly expressed references to examining the environmental impacts of each phase of the development also included the impact of emissions. As regards the environmental statement, the defendants had been entitled, in the exercise of their judgment, to conclude that an assessment of the environmental impacts of burning gas was not required. The claimants had not established any defect in the environmental statement or any error of law in the defendants’ reliance upon it. Furthermore, the defendants had been well aware of the issues and had taken them into account when resolving to grant planning permission. It was impossible to conclude that the officers had failed to guide the members sufficiently or had misled them, on a matter essential to their decision. The real thrust of the objections had been that energy requirements ought to be met by other, less environmentally damaging means, than gas production and a gas-fuelled electricity generating station. That was essentially a planning judgment. The committee had been extensively briefed by officers on the climate change issues, as well as the government’s policy so that members had been in a position to evaluate the merits of the claimants’ representations themselves, without specific advice from the officers on the detail of those representations: R v Cornwall County Council, ex p Hardy [2001] JPL 786, R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775; [2004] JPL 751 and R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404; [2016] PLSCS 120 applied. R (on the application of Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) considered.
(2) Applying paragraphs 41, 42, 47 and 48 of the Planning Policy Guidance, the planning officer had been entitled to advise the committee that this was not an exceptional case justifying a financial guarantee. In giving that advice, the officer had also rightly reviewed the protection afforded by other regulatory regimes and had proposed conditions to achieve financial protection in another way. The terms of the conditions afforded a considerable degree of protection to residents. Despite the claimants’ submission that the protection had been too short-lived, it had been apparent that the conditions had extended beyond mere restoration to a programme of aftercare, in accordance with the guidance. Accordingly, the defendants had acted lawfully in the exercise of their discretion, in imposing conditions and deciding not to seek a financial bond.
David Wolfe QC (instructed by Leigh Day) appeared for the claimants; Sasha White QC and Gwion Lewis (instructed by Legal & Democratic Services, North Yorkshire County Council) appeared for the defendants; Nathalie Lieven QC (instructed by Eversheds LLP) appeared for the interested party.
Eileen O’Grady, barrister
