R Dennett v Lancashire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] EWHC 2721 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2018 |
| Docket Number | CO/3899/2018 |
[2018] EWHC 2721 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/3899/2018
and
APPEARANCES
Mr M Willers QC and Miss E Dehon (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant.
Mr A Evans (instructed by Legal Department, Lancashire County Council) appeared on behalf of the Defendant.
Miss Nathalie Lieven QC (instructed by Herbert Smith Freehills) appeared on behalf of the Interested Party.
On 4 October 2018 the claimant, Mr Dennett, filed a claim seeking permission to apply for judicial review of the alleged failure by the defendant, Lancashire County Council, properly to manage and regulate the environmental and health and safety risk to the local community from the shale gas fracking operations to be carried out by the first-named interested party, Cuadrilla, at its Preston New Road site (“the PNR site”). The claimant is a local resident.
An interim injunction was sought against Cuadrilla to prevent the commencement of shale gas fracking. On 4 October, Farbey J granted limited interim relief and directed that the claimant's application be adjourned to an urgent oral hearing. At this hearing I have had the benefit of written and oral submissions from Mr Marc Willers QC (leading Miss Estelle Dehon) on behalf of the claimant, Mr Alan Evans on behalf of the defendant, and Miss Nathalie Lieven QC on behalf of Cuadrilla.
In summary, the background to the present proceedings is that on 1 July 2008 Cuadrilla was granted a Petroleum Exploration and Development licence. On 16 January 2015 it was granted an environmental permit. On 6 October 2016 the Secretary of State for Communities and Local Government granted planning permission for the fracking operations. On 12 January 2018 the Court of Appeal dismissed two challenges to the planning permission. On 29 May the unsuccessful appellants applied to the Supreme Court for permission to appeal, which application has yet to be determined.
On 23 June 2017 Cuadrilla had applied to vary the environmental permit. On 1 May 2018 the Environment Agency approved the variation of the permit. That variation is currently subject to an application for judicial review, issued by Friends of the Earth, which is listed for a rolled-up hearing on 29 November. Counsel informed me that that application relates to an issue different from the issues before this court.
In April 2018 the drilling for the first horizontal well through the shale block was completed. In July the site's (and the UK's) second horizontal shale well was drilled. On 24 July 2018 the Minister for Energy and Clean Growth within the Department for Business, Energy and Industrial Strategy granted Cuadrilla a Hydraulic Fracturing Consent, subject to certain conditions, for the first well; and in September 2018 consent for the second well. As a result, Cuadrilla is now in a position to start the hydraulic fracturing process on the first well, which was due to commence this week.
This is a late application. It has plainly been known for some two months that Cuadrilla had consent to commence fracking operations.
The claimant contends that the council's emergency planning functions in relation to the shale gas fracking operations of Cuadrilla have been discharged unlawfully. Mr Willers advances three grounds of challenge: first, the council failed to take into account material considerations in its contingency and emergency plan; second, the council failed to liaise appropriately with the local community; and, third, the council failed to apply the “Precautionary Principle” in its responsibilities for emergency planning. Each of these grounds of challenge is based on the allegation that the council has erred in law in its emergency planning.
It is important to appreciate what this case is not about. It is not about the merits of shale gas fracking operations, nor is it about whether the Secretary of State should have granted hydraulic fracturing consent to Cuadrilla.
On 10 August 2018 the present claimant's solicitors wrote a letter before action to the Secretary of State concerning a proposed challenge to the decision of 24 July to grant consent. At that time the proposed claimant was a different person to the present claimant. That proposed challenge was not pursued.
Turning to the present application, I start with ground 3 because the conclusions I reach on that ground inform the analysis of the issues that arise on grounds 1 and 2.
The third ground of challenge is that there has been a failure by the council to take an appropriate precautionary approach to its responsibilities for environmental and health and safety planning and emergency procedures. This, it is said, is particularly so given the fact that there must be an element of uncertainty associated with such a new form of mineral extraction facility. There are incidences of well blow-outs and gas leaks from the United States and also off-shore in UK waters. However, the claimant contends that the council appears to have failed to take into account this crucial part of the risk matrix in terms of its assessment of the frequency and severity of risk. In these circumstances it is the claimant's case that the risk assessment should have concluded that the risk was “high” and not “medium”.
I am satisfied on the evidence before this court that the regulatory risks referred to by the claimant have been properly considered and assessed by the relevant regulatory bodies. The Environment Agency has conducted extensive reviews. The Health and Safety Executive (“HSE”) is content for hydraulic fracturing to commence. The council's assessment that the site poses a medium risk was made on the basis of the work carried out by the HSE. That the project poses a medium risk is the conclusion of the Lancashire and Resilience Forum (“LRF”), a body made up of the council, the HSE, the Environment Agency, the police, fire and ambulance services, and NHS England. The original assessment was done in July 2017. It was re-assessed in the summer of 2018 and again on 5 October 2018.
As Mr Egan, the Chief Executive Officer of Cuadrilla, explains in his witness statement, this meant that emergency planning for the site would be dealt with by the existing generic arrangements used for similarly classified sites across the county, and would not require the LRF to put in place a bespoke emergency response for the PNR site, and no multi-agency site-specific plan is required.
The HSE has been on site on numerous occasions. In April 2018 the HSE issued a certificate confirming that following receipt from Cuadrilla of the relevant information under the statutory regulations it had conducted a site visit and inspected the well. The HSE conducted a further visit and inspection on 3 and 4 October covering a range of matters including well control, safety and monitoring.
Likewise, the Environment Agency has conducted extensive reviews prior to approving Cuadrilla's environmental permits. The Environment Agency has carried out 16 inspections since the beginning of 2017, the last being on 5th September 2018.
Essentially, the claimant contends that the only reasonable conclusion is that the fracking operations present a high risk. However, there is no evidence before this court to support this contention. It is not for this court to substitute its own risk assessment for the risk assessment based on robust specialist technical expertise. There is no basis for the contention that the assessment of medium risk is irrational.
I am satisfied that the assessment of the risk as “medium” was a conclusion that could properly be reached on the available evidence. The assessment was based on the expert evidence of HSE and the product of a lengthy and detailed regulatory scrutiny, which has continued up to the present time.
Further, I am satisfied that the risk assessment proceeded on an appropriate precautionary basis by applying a reasonable worst-case scenario at the PNR site of a major fire or explosion as a result of a release of natural gas following a well blow-out.
I consider next the first ground of challenge (alleged failure to take into account material considerations). In the claim form this consisted of three allegations. The first is that there was a failure to take into account the fact that the PNR site will be linked to the National Grid by a gas pipeline in circumstances where such pipelines are themselves regarded as “high” risk; the second is...
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