Preston New Road Action Group (Through Mrs Susan Holliday) v (1) Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Lindblom,Lord Justice Henderson |
| Judgment Date | 12 January 2018 |
| Neutral Citation | [2018] EWCA Civ 9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2017/1252 and C1/2017/1283 |
| Date | 12 January 2018 |
[2018] EWCA Civ 9
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
Lord Justice Lindblom
and
Lord Justice Henderson
Case Nos: C1/2017/1252 and C1/2017/1283
Dr David Wolfe Q.C. and Dr Ashley Bowes (instructed by Leigh Day) for the Appellant
Mr David Elvin Q.C. and Mr David Blundell (instructed by the Government Legal Department) for the First Respondent
Ms Nathalie Lieven Q.C. and Mr Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Second Respondent
Mr Marc Willers Q.C. and Ms Estelle Dehon (instructed by Richard Buxton Environmental and Public Law) for the Appellant
Mr David Elvin Q.C. and Mr David Blundell (instructed by the Government Legal Department) for the First Respondent
Ms Nathalie Lieven Q.C. and Mr Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Third and Fourth Respondents
Hearing dates: 30 and 31 August 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Did the Secretary of State for Communities and Local Government err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That is the basic question in these two appeals. It does not raise any novel or controversial issue of law.
Though they are concerned only with exploration for shale gas, and not with its commercial extraction, the proposals have attracted strong opposition in the local communities affected by them. Our task, however, is not to consider whether the Secretary of State's decision was right. Any view the court might hold about “fracking”, or about the planning merits of these particular proposals, is entirely irrelevant. What we must do, and all we can do, is to decide whether the Secretary of State committed any error of law. To do this we must apply well established principles governing the review of planning decisions, recently confirmed by this court in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 (see my judgment, at paragraph 6).
In the first appeal the appellant is the Preston New Road Action Group; in the second, Mr Gayzer Frackman. The appeals are against the order of Dove J., dated 25 April 2017, by which he dismissed applications made under section 288 of the Town and Country Planning Act 1990 challenging the decisions of the Secretary of State, the first respondent in both appeals, to allow appeals by Cuadrilla Bowland Ltd. and Cuadrilla Elswick Ltd. against refusals of planning permission by Lancashire County Council as mineral planning authority. I shall refer to both companies simply as “Cuadrilla”. Their proposals were for exploration works, including exploratory wells, and associated monitoring to test the feasibility of the commercial extraction of shale gas, on 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, and to restore the sites to agriculture once exploration has concluded.
In June 2015 the county council refused both applications for the Preston New Road site and the application for exploration works at Roseacre Wood, but granted planning permission for monitoring works at Roseacre Wood, subject to conditions. Cuadrilla appealed. An inspector appointed by the Secretary of State, Ms Wendy McKay, held an inquiry in February and March 2016. In a report dated 4 July 2016 she recommended that the appeals for the Preston New Road development and for the monitoring works at Roseacre Wood be allowed, and that for the exploration works at Roseacre Wood be dismissed. In his decision letter, dated 6 October 2016, the Secretary of State allowed the appeals for the Preston New Road development, and for the Roseacre Wood monitoring works. But instead of dismissing the appeal for the exploration works on that site, he decided to re-open the inquiry to enable Cuadrilla to submit further evidence on highway capacity and safety, and indicated that he was minded to allow the appeal if the new evidence was satisfactory. Both challenges came before Dove J. at a “rolled-up” hearing on 15 and 16 March 2017. He dismissed both applications. The action group's appeal is against the judge's order where it concerns the development proposed at Preston New Road. Mr Frackman's relates to the proposals on both sites.
A full account of the relevant facts is to be found in Dove J.'s judgment, in paragraphs 6 to 37. It is not necessary to repeat that narrative here. I gratefully adopt it.
The issues in the appeals
The two appeals raise quite different issues. In the first appeal there are four live grounds, which give rise to these main issues:
(1) whether the Secretary of State misconstrued and misapplied Policy CS5 of the Joint Lancashire Minerals and Waste Development Framework Core Strategy (“the minerals core strategy”) (ground 1 of the appeal);
(2) whether the Secretary of State misconstrued and misapplied Policy DM2 of the Joint Lancashire Minerals and Waste Local Plan: Site Allocation and Development Management Policies – Part One (“the minerals local plan”) (ground 5);
(3) whether the Secretary of State misconstrued and misapplied the policy for “protecting and enhancing valued landscapes” in paragraph 109 of the National Planning Policy Framework (“the NPPF”) (ground 3); and
(4) whether the Secretary of State's decisions were vitiated by procedural unfairness – because he concluded that Policy EP11 of the Fylde Local Plan was not engaged by the proposals without giving the parties the opportunity to comment on that conclusion (ground 4).
In the second appeal, the four main issues are these:
(1) whether, for the purposes of Directive 2011/92/EU, as amended (“the EIA Directive”), the Secretary of State failed to heed the relevant principles on “cumulative effects” – in particular, for the direct impact of the extended flow testing phase of the proposed development, and for the indirect impact of the production stage of the project (ground 1);
(2) whether he failed to act in accordance with the principle, under the regime for environmental impact assessment (“EIA”), that potentially significant effects on the environment ought to be taken into account at the earliest possible stage (ground 2);
(3) whether his decisions are flawed by inconsistency because he took into account the benefits of shale gas production but left out of account the harmful effects it would have (ground 3); and
(4) whether he failed to apply the “precautionary principle”, in particular by discounting evidence of uncertainty over the possible effects of the development on human health and assuming that the regulatory regime would operate effectively (grounds 4 and 5).
Issue (1) in the first appeal – Policy CS5 of the minerals core strategy
The development plan at the time of the Secretary of State's decisions comprised the minerals core strategy (adopted in February 2009), the minerals local plan (adopted in September 2013) and the saved policies of the Fylde Local Plan (adopted in 2003 and altered in 2005). It seems sensible to set out the relevant policies together.
Policy CS5 of the minerals core strategy is in section 6.5, under the heading “Achieving Sustainable Minerals Production”. The relevant part of it states:
“…
Criteria will be developed for the site identification process, and also for considering other proposals brought forward outside the plan-making process, to ensure that:
…
(ii) features and landscapes of historic and cultural importance and their settings are protected from harm and opportunities are taken to enhance them;
…
(iv) proposals for mineral workings incorporate measures to conserve, enhance and protect the character of Lancashire's landscapes;
…
(vii) sensitive environmental restoration and aftercare of sites takes place, appropriate to the landscape character of the locality and the delivery of national and local biodiversity action plans. Where appropriate, this will include improvements to public access to the former workings to realise their amenity value.
.…”.
Policy DM2 of the minerals local plan, “Development Management”, states:
“Development for minerals or waste management operations will be supported where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels. In assessing proposals account will be taken of the proposal's setting, baseline environmental conditions and neighbouring land uses, together with the extent to which its impacts can be controlled in accordance with current best practice and recognised standards.
In accordance with Policy CS5 and CS9 of the Core Strategy developments will be supported for minerals or waste developments where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that the proposals will, where appropriate, make a positive contribution to the:
• Local and wider economy
• Historic environment
•...
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