Preston New Road Action Group (Through Mrs Susan Holliday) (First Claimant) Gayzer Frackman (Second Claimant) v Secretary of State for Communities and Local Government (First Defendant) Lancashire County Council (Second Defendant) Cuadrilla Bowland Ltd (Third Defendant) Cuadrilla Elswick Ltd (Fourth Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWHC 808 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5818/2016 & CO/5819/2016 |
| Date | 12 April 2017 |
[2017] EWHC 808 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
MANCHESTER DISTRICT REGISTRY
Handed down at
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/5818/2016 & CO/5819/2016
and
and
and
and
David Wolfe QC & Ashley Bowes (instructed by Leigh Day) for the First Claimant
Marc Willers QC & Estelle Dehon (instructed by Richard Buxton) for the Second Claimant
Rupert Warren QC & David Blundell (instructed by GLD) for the First Defendant
Nathalie Lieven QC & Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Third and Fourth Defendants
The Second Defendant was not represented
Hearing dates: 15 th & 16 th March 2017
Introduction
This judgment concerns two applications for statutory review pursuant to section 288 of the Town and Country Planning Act 1990 in relation to a decision by the defendant given on 6 th October 2016 to grant planning permission in respect of development described in greater detail below. The ordering and inclusion of the second, third and fourth defendants above differs between the two actions but for the sake of convenience they have been reordered for the purposes of identification within this judgment. The second defendant took no part in the hearing of these matters (although they had a representative present at the hearing). Hereafter the first defendant will be identified as the "defendant" and the third and fourth defendants, who were jointly legally represented throughout, will be referred to as the "developer". The second defendant will be referred to as the "County Council".
There were two sites concerned in the defendant's decision of 6 th October 2016 and four subsequent appeals, two for each site. For the purposes of this judgment the two sites will be referred to as the "Preston New Road site" and the "Roseacre site". For each site the developer had proposals for, firstly, exploratory work and, secondly, monitoring. Whilst the proposals and the outcome of the appeals are dealt with in greater relevant detail below, in broad terms the defendant allowed the appeals on the Preston New Road site and granted planning permission for both the exploratory works and the monitoring works. On the Roseacre site the defendant indicated that he was minded to allow the appeal by the developer against the County Council's refusal of the exploratory works and grant planning permission, subject to being satisfied that highway safety issues which were identified by the Inspector could be satisfactorily addressed; the defendant proposed to reopen the public inquiry to examine those issues. In relation to the monitoring works on the Roseacre site the particular issue upon which the appeal was based was the developer's concern as to the conditions which had been imposed by the second defendant when granting planning permission. The defendant allowed the appeal by deleting conditions and substituting alternative conditions set out in the decision letter.
The subject matter of both applications is solely the decision to allow the appeal and grant planning permission in respect of the exploratory work at the Preston New Road site. At one point the second claimant sought to include within his claim a challenge to the "minded to allow" decision reached on the exploratory works at the Roseacre site. At the hearing it was clarified that there was no longer any challenge to the decision on the Roseacre exploratory works. For the record, there is presently an application for judicial review before the court in relation to the decision reached by the defendant in respect of the Roseacre exploratory works appeal, and in particular his decision to reopen to inquiry rather than to dismiss the appeal as recommended by the Inspector.
The structure of this judgment is as follows. Firstly, it examines the proposal and the decision reached on that proposal by the County Council. Secondly, the evidence before the Inspector at the inquiry in relation to the appeal is described. Thirdly, the judgment addresses the Inspector's Report ("the report"). Next the judgment turns to the decision which was reached by the defendant ("the decision"). The grounds raised by the first claimant are dealt with separately from those raised by the second claimant since they are based on very different legal contentions. Since the law is similar in relation to the first claimant's Grounds 1, 2, 3 and 5 those are dealt with together. The first claimant's Ground 4, which raises different legal considerations, is dealt with separately. The judgment then turns to the second claimant's Grounds and deals separately with the second claimant's Grounds 1 and 2.
As I indicated at the hearing, I am extremely grateful to the parties for the considerable hard work that went into the preparation of the papers for the hearing of this case, which greatly assisted the smooth running of the hearing. I am also indebted to counsel on all sides for their careful, helpful and focused submissions. Part of the preparation process involved the settling of a schedule of agreed legal propositions which provide the background to the legal discussions set out below and which are appended to this judgment as Appendix 1.
The Proposal
On 29 th May 2014 the developers applied to the County Council for planning permission for development described in the following terms:
"Construction and operation of a site for drilling up to four exploratory wells, hydraulic fracturing of the wells, testing for hydrocarbons, abandonment of the wells and restoration, including provision of an access road and access onto the highway, security fencing, lighting and other uses ancillary to the exploration activities, including the construction of a pipeline and a connection to the gas grid network and associated infrastructure to land to the north of Preston New Road, Little Plumpton."
The period of the works was described as being six years. The application was accompanied by an Environmental Statement ("the ES"). The Non-Technical Summary of the ES explained that underlying the site, and indeed the wider area within which the site is situated, was a geological formation known as the Bowland Shale that is understood to contain significant quantities of natural gas. The developers had the benefit of a licence to undertake shale gas exploration over an area of land including the site. The purpose of the works was "primarily to determine whether the natural gas contained with the shale can be extracted and whether it is likely to be economical to do so". The development proposal itself involved the construction of a temporary flat working area, known as the well pad, followed by the drilling of four wells into the ground to a maximum depth of 3,500 metres below the ground's surface. The wells were to be drilled vertically to a variety of depths followed by then being drilled horizontally for up to 2,000 metres. Once drilled, the wells would be lined, after which the hydraulic fracturing process would begin.
Hydraulic fracturing (which is also referred to in this judgment interchangeably with the more colloquial term "fracking") involves pumping fluid under high pressure into the wells with a view to opening up millimetre sized gaps or cracks, thereby releasing the natural gas trapped in the shale. The fluid used is largely water, but also contains sand particles (to hold open the cracks) and other chemicals in solution to assist the process. The injected fracturing fluid is allowed to flow back to the surface (referred to below as flowback fluid) and then, to the extent possible, reused. Flowback fluid that is not used is stored on the site prior to being taken offsite to an approved treatment facility. The Non-Technical Summary indicates an estimate of two months to complete the hydraulic fracturing of each of the wells. Following the completion of the hydraulic fracturing operation, initial flow testing for a period of up to 90 days occurs. During the course of this initial flow testing, the gas produced is measured, both in terms of its flow rate and composition, and then burnt in enclosed flare stacks approximately ten metres tall and three metres in diameter.
If the initial flow testing demonstrates that the flow of gas from the wells is sufficient, there then follows a period of extended flow testing for 18–24 months for each well. At this point the gas extracted from the shale would not be burnt in the flare stacks, but instead the well would be connected to the gas grid for use by residential, business or industrial end-users. At the end of the exploration activities described above, the Non-Technical Summary describes the decommissioning and restoration of the site. This involves removing the above ground apparatus and cutting off each well at least two metres below ground level and sealing it. The well pad would be removed and the soil which had been stored as part of the operations to construct the well pad would be redistributed across the site, and the site would be returned to an agricultural land use. The Non-Technical Summary concludes the description of the development and activities by stating the following:
"If the exploration work proves that the flow of natural gas from the shale would support long term shale gas production the Site, a new planning application and ES could be prepared and submitted for approval. However, this would be dependant on there being sufficient gas present in this area of the Bowland Shale."
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