Planning permission – Environment – Fracking – First respondent secretary of state granting planning permission for exploration works for extracting shale gas by hydraulic fracturing (fracking) – Court dismissing appellants’ application for judicial review – Appellants appealing – Whether first respondent erring in law – Appeal dismissed
The second and third respondents wished to carry out exploratory works to assess the feasibility of extracting shale gas by hydraulic fracturing (fracking) at two sites, one at Plumpton Hall Farm, off Preston New Road, near Fylde, the other at Roseacre Wood, Roseacre Hall, Roseacre and Wharles, near Preston. The proposal was to explore the sites for six years and then restore them.
The second respondent local authority refused planning permission for the proposed exploratory works at both sites but the first respondent secretary of state, adopting a planning inspector’s recommendations, allowed appeals against those decisions. He concluded that the proposals were in accordance with policy CS5 in the Core Strategy, and that because the harmful landscape and visual impacts had been reduced to an acceptable level they were not in conflict with policy DM2 of the local minerals plan. He also concluded that it could be assumed that the regulatory regime would operate effectively to control emissions and that there would be no public health impacts.
An application for judicial review of that decision by the appellant action group was dismissed by the High Court: see [2017] EWHC 808 (Admin). The judge confirmed the first respondent’s decision and, in relation to the environmental assessment, held that there were no indirect, secondary or cumulative impacts that should have been assessed arising from the suggestion that exploration was being carried out with a view to future production.
The appellant appealed. The only issue for determination whether the first respondent had made any error of law.
Held: The appeals were dismissed.
(1) The first respondent had not misconstrued or misapplied policy CS5 by concluding that temporary harm was not a breach of the policy. Planning policies were not to be construed as if they were provisions in a statute or a contract. The court risked exceeding its limited role if it neglected the basic distinction between discerning the meaning of a planning policy and bringing public law principles to bear on the application of that policy in a planning decision. Policy CS5 was a strategic policy specifically aimed at achieving sustainable minerals production. Policy DM2 translated the objectives of CS5 into criteria for planning permission applications. The two policies had to be read together and allowed a planning judgment that temporary effects on the landscape did not offend its objectives: Secretary of State for Communities and Local Government v Hopkins Homes Ltd [2017] UKSC 37; [2017] EGLR 27 followed.
(2) Read as a whole, policy DM2 did not make a “positive contribution” which was a prerequisite to compliance with the policy. The second part of it did not create an additional requirement to the first. Consideration of whether the development would make a positive contribution was deliberately qualified by the important words “where appropriate”. The inspector, with whom the first respondent expressly agreed, decided that the proposals did not conflict with DM2 taken as a whole. There was no basis for holding that the first respondent erred in law in his conclusion that the proposed development was “in accordance with the development plan taken as a whole”.
(3) A decision-maker was not compelled by para 109 of the National Planning Policy Framework to find conflict with it when the harmful effects of minerals development on a “valued” landscape would, in the course of the project, be reversed or mitigated. The policy was not framed in terms of preventing any harm at all to such landscape. When applied in the making of a planning decision, it required from the decision-maker a planning judgment on whether the general policy objective of “protecting and enhancing” such landscapes would be offended or not. It was for the decision-maker to consider whether any temporary harm to the landscape would breach the policy. The nature of the damage to the landscape, its duration, the importance of the “valued” landscape, and the degree of formal protection it had been given, if any, were likely to be relevant factors.
(4) The appellants had had an opportunity to participate in the procedure by which the decision was made. They exercised their opportunity to participate in the inquiry process as they chose, with the benefit of advice and representation by experienced planning counsel. They were able to tackle the relevance of local plan policy EP11 as an issue before the inspector and first respondent effectively in the course of the inquiry. A fair procedure did not require it to be given a different opportunity to do that, or a renewed opportunity after the inquiry was closed.
(5) The proposed scheme was a single, clearly defined project limited to exploration and monitoring; it did not include any subsequent commercial production. The fact that production would only proceed after exploration had proved the presence of a commercial resource did not mean that the two operations were necessarily and indivisibly part of the same project, that the two projects would have a cumulative effect on the environment or that the instant project would have direct or secondary effects that were impacts associated with a hypothetical future extraction project. There was no evidence of any likely material increase in greenhouse gas emissions, or any other likely significant effect on the environment, that ought to have been addressed in the environmental impact assessment but was not.
(6) The conclusions of the inspector and the first respondent on health impacts were not at odds with the “precautionary approach” or the “precautionary principle”. The existence of uncertainty in relevant scientific knowledge did not render unlawful the approach they adopted. 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.
David Wolfe QC and Ashley Bowes (instructed by Leigh Day) appeared for the appellant in the first action; Marc Willers QC and Estelle Dehon (Richard Buxton Environmental & Public Law) appeared for the appellant in the second action; David Elvin QC and David Blundell (instructed by the Government Legal Department) appeared for the first respondent in both actions; Nathalie Lieven QC and Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) appeared for the second respondent in the first action, and the third and fourth respondents in the second action.
Eileen O’Grady, barrister
