The English High Court has rejected challenges to the planning permission for Cuadrilla’s proposed exploratory work at Preston New Road, Lancashire. That follows the unsuccessful challenges to Third Energy’s project at Kirkby Misperton, North Yorkshire (the Frack Free Ryedale case). Although the case is about fracking, it illustrates key legal principles/ approaches which might apply to other forms of development.
EIA – The claimants challenged the scope of the environmental impact assessment, relying on the rule that a project must be assessed as a whole and not split into parts (so-called salami slicing). The contention was that, although consent was sought for exploratory work, the EIA should have included the potential gas production phase. That was rejected by the judge on the grounds that the application had to be addressed on its own terms, and any further gas extraction would require a new planning application and further EIA.
The judge also held that it was correct for the EIA to consider flaring during the initial flow testing phase, but not the greenhouse gas emissions during the extended flow phase when the gas wells would be connected to the grid. There was no evidence that there would actually be any increase in gas usage. This was broadly analogous to the approach taken in the Kirkby Misperton case.
Precautionary principle – It was also claimed that the precautionary principle demanded that permission be refused, because of uncertainties about impacts to human health, together with concerns about the adequacy of the regulatory regime controlling those impacts. That was rejected by the judge, on the grounds that the inspector set out a detailed evaluation of the public health concerns and the effectiveness of the regulatory regime, and concluded that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level.
Interpretation of policy – the judge held that the planning policies had to be read in their context. Policy CS5 sets out strategic objectives to enable more detailed criteria to be developed. It therefore had to be read alongside policy DM2, which had been prepared to give expression to policy CS5 at the decision-taking level. Although CS5 referred to “protected from harm”, that did not mean that any harm would give rise to a breach of policy, as DM2 contemplated there may be demonstrable harm from minerals development, but nevertheless such proposals would be supported where that harm is reduced to acceptable levels.
There was a similar issue with a reference in the National Planning Policy Framework to “protecting and enhancing valued landscapes”. The judge stated that this phrase had to be read as a high-order strategic objective of the planning system as a whole, and not as providing that any harm is a breach of this policy. Properly interpreted, it calls for an overall assessment of harm to the landscape in order to reach a planning judgment whether the landscape has been protected and enhanced.
There was also an issue whether policy DM2 required a positive contribution to the residential amenity of those living nearby. The judge held that a proposal would be supported by the policy if it complied with the first part of the policy, and eliminated or reduced demonstrable harm to acceptable levels, regardless of whether or not it made a positive contribution under the various headings referred to in the second part of the policy.
This decision is a reminder of how difficult it is to challenge successfully consenting decisions in the courts.