Three barristers, including two QCs, provided competing legal advice on the second of two planning applications in Lancashire as part of the latest development in the UK's ongoing 'dash for shale'.
Lancashire County Council rejected the second 'fracking' application by Cuadrilla for a site at Preston New Road, Little Plumpton, on 29 June 2015 having refused the first application last week. This did come as a surprise to some considering that the Council's own officers recommended that permission be granted and David Manley QC, on 24 June 2015, advised the Council that:
"While a refusal which is not backed by substantial objective evidence cannot be described as unlawful, it nonetheless can readily be described as unreasonable in planning terms."
That unreasonableness could result in an appeal and potentially legal challenges over the course of 2015.
The application for Preston New Road, Little Plumpton
The application was for the first two phases exploration and testing (appraisal), including the construction and operation of a site for drilling up to four exploration wells, including hydraulic fracturing of the wells.
The extent of the below ground works for vertical and horizontal drilling and hydraulic fracturing, would extend to a total area of 562ha in a quadrant shape.
The officer's report considered that whilst the development could pose some environmental impacts, these would be low and could be mitigated and controlled to an acceptable level and would also be controlled by other regimes which the County Council could assume were in place and be satisfied that such controls would be enforced by the respective bodies. The planning officer's recommendation was for permission to be granted and commenced within 3 years subject to conditions.
Reasons for refusal
The reasons for refusal are reported as being detrimental impact on the landscape and unacceptable noise. This was in spite of the reporting officer concluding that there would be an absence of unacceptable landscape/visual impacts and David Manley QC advising that he had not seen evidence to justify a conclusion against that of the reporting officer.
In summary, and contrary to the above advice, the Council's reasons for refusal were that the proposed development would cause an unacceptable adverse impact on the landscape, arising from the drilling equipment, noise mitigation equipment, storage plant, flare stacks and other associated development. The combined effect would result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policies DM2 Lancashire Waste and Minerals Plan andPolicy EP11 Fylde Local Plan.
Further, the proposed development would cause an unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP27 Fylde Local Plan.
The case officer and David Manley QC, separately, considered that policy DM2 could be complied with.
Dr Ashley Bowes from Guildford Chambers, in advising Preston New Road Action Group on the advice of David Manley QC, noted that his advice did not reflect the full extent of Councillors duties and powers. He noted that Councillors can depart from officer's advice where there are rational and discernible reasons.
Dr Bowes goes further and, contrary to David Manley's quote above, notes that:
"In my view a refusal based on landscape and noise impact would be rational in that it is supported by evidence before the Committee… provided the eventual reasons are supported by evidence at appeal, there is no serious risk of costs even if the appeal is allowed."
Richard Harwood QC, for Friends of the Earth, also emphasised that Councillors must have a basis in evidence and be reasonable in their conclusions and judgement.
It is unsurprising that those in favour of and against fracking are able to procure Counsel's opinion to support their respective positions given that these applications are intensely controversial. However, statistically, committee decisions which are contrary to a properly formulated planning officer's recommendation are often prone to be overturned on appeal with an award of costs as noted by David Manley QC. The next step for Little Plumpton and Cuadrilla may be an appeal to the Secretary of State.
The perhaps unexpected refusal of the application for Little Plumpton came only came four days after the same officials rejected another Cuadrilla shale gas application relating to Roseacre Wood (endnote 1). This second refusal and particularly against the officer's recommendation clearly shows the strength of local opposition to unconventional gas production.
The officer's report relating to the first application had found no fault with the plans for drilling and fracking. The only dissatisfaction with the Roseacre Wood site was heavy traffic.
This rejection of the Little Plumpton application now presents a difficult decision for the Government. If Cuadrilla decide to appeal the County council’s decision, then the final planning decision is likely to be made by the Communities secretary Greg Clark. He will then be faced with the dilemma of an outcome which either will be in line with the Government’s policy to go "all out" for fracking, or a decision which would be in line with the wishes of affected communities, as expressed by their elected representatives.
The dilemma appears exacerbated against a political backdrop where the Government's and Greg Clarke's very recent moves have sought to empower local people to have the final say on unwelcome onshore wind development.
While it is not yet known if Cuadrilla will appeal the Council's latest refusal, the press reports are that Cuadrilla may be considering an appeal.
Richard Harwood QC offers the very useful reminder that:
"Planning decisions are taken by politicians rather than experts or lawyers and that the balancing of benefits and harm is ultimately a political decision. Whether a particular impact is acceptable has a large measure of political judgement in it."
Fracking and the future of the industry will now depend on the outcome of any appeal and perhaps the Government reviewing whether the local planning system is able to deal adequately with critical energy related developments such as this, which the Government has previously stated is in the national interest.