Minister failed to take into account relevant material when adopting fracking policy: High Court

The Secretary of State for Housing, Communities and Local Government failed to take into account material relevant to his decision to adopt a paragraph in the National Planning Policy Framework (NPPF) covering on-shore oil and gas extraction, a High Court judge has found.

The case of Stephenson v Secretary of State for Housing And Communities And Local Government [2019] EWHC 519 involved a challenge to the adoption by the minister of paragraph 209(a) of the NPPF on 24th July 2018.

Under the heading "Oil, gas and coal exploration and extraction", paragraph 209(a) provides as follows:

"209. Minerals planning authorities should:

a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction."

The claimant, who brought the challenge on behalf of campaign group Talk Fracking, advanced four grounds of challenge:

1. The Secretary of State unlawfully failed to take into account material considerations, namely scientific and technical evidence, which had been produced following the adoption of a Written Ministerial Statement by the Secretary of State for Business and Energy and Industrial Strategy and the Secretary of State on 16th September 2015.
2. The Secretary of State failed, in publishing the policy in paragraph 209(a) of the Framework, to give effect to the Government's long-established policy in relation to the obligation to reduce green-house gas emissions under the Climate Change Act 2008.
3. In adopting paragraph 209(a) the Secretary of State unlawfully failed to carry out a Strategic Environmental Assessment. The issues raised in relation to this ground of challenge were essentially identical to those being addressed in the case of Friends of the Earth v Secretary of State for Housing, Communities and Local Government [2019] EWHC 518 (Admin) and the Claimant in the present case accepted that, given the arguments were parallel, Ground 3 would be resolved by the conclusions reached in relation to the arguments raised in the Friends of the Earth case.
4. The Secretary of State failed to carry out a lawful consultation exercise in relation to the revisions to the Framework which were published on 24th July 2018.

In relation to Ground 4, Mr Justice Dove said that in the light of the evidence and having considered the various submissions raised he was satisfied that the consultation exercise involved breaches of the Sedley principles which are the requirements for a fair and lawful consultation exercise

The judge accepted the submission that the consultation on the draft revised Framework paragraph 204(a) was so flawed in its design and processes as to be unlawful.

Concluding that Ground 1 was also made out, Mr Justice Dove said: “What appears clear on the evidence is that the material from Talk Fracking, and in particular their scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although on the basis of my conclusions as to what the reasonable member of the public would have concluded as to the nature and scope of the consultation, this material was relevant to the decision which was advertised, which included the substance and merits of the policy.

“On this basis it clearly was obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects. As is clear from what is set out above, on the particular facts of this case the MacKay and Stone Report was an important piece of evidence justifying the validity of the policy in the 2015 WMS, and the need to avoid adverse consequences for climate change were an important aspect of whether or not to adopt the policy. Indeed, [counsel for the defendant] did not contend to the contrary and indicated in his submissions that the Defendant would be engaging with this scientific debate at a time when the substance of the policy in question was being considered.”

The High Court judge said the Secretary of State’s evidence made clear that this material was not considered. “In my view on the basis of the particular facts of this case Ground 1 is made out. The Defendant left out of account obviously material considerations relevant to the decision which he had led the public to believe he was taking. Bearing in mind how the nature and scope of the decision had been clearly communicated it was not then open to the Defendant to take a different decision avoiding the need to take those considerations into account.”

This was related to the fourth Sedley principle, in that having conducted a consultation exercise in which the Talk Fracking material was clearly relevant to the questions posed and which that principle required the Secretary of State to give conscientious consideration to, that consultation response must amount to a material consideration in the decision that is subsequently taken, Mr Justice Dove said.

“Against the background of the nature and scope of the decision in respect of paragraph 204(a) of the draft revised Framework set out above and to be derived from the publicly available documentation it was unlawful to leave that material out of account. The fact that the Defendant believed that he was taking a far more narrow and restricted decision from that which he had advertised to the public does not provide a basis for avoiding that conclusion.”

Law firm Leigh Day, which acted for the claimant, said: “Whereas a number of previous legal challenges have sought to overturn individual planning decisions relating to fracking sites, this case relates to the government’s national policy on fracking.

“Talk Fracking argued that the recent revision of this policy instructs local councils that fracking is beneficial in tackling climate change, contrary to scientific evidence. A Written Ministerial Statement in 2015 made similar claims, and it is argued that the incorporation of that statement into the NPPF ignored key factors that have emerged since, such as a greater scientific recognition of the climate change impact of methane emissions released as a result of fracking."

The parties will now make arguments to the Court about what the Government must do as a result of the ruling.

Mr Justice Dove dismissed Grounds 2 and 3 of the challenge.

Rowan Smith, solicitor from Leigh Day, said: “What is clear from this judgment is that the Government has to keep climate change science under review when formulating fracking policies in an open and transparent way. The 2015 statement that fracking supports a low-carbon economy was never consulted upon, and the Judge was critical of the way the Government, during last year’s consultation exercise, tried to shoehorn that statement into national policy whilst brushing off public objections to the basis for doing so.

“It is clear what the Government must now do, namely hold a full review of its policy support for fracking, after a meaningful public consultation and properly considering the scientific developments Talk Fracking presented and all other related material.”