Judge rejects legal challenges to permission for fracking exploratory works

A Planning Court judge has dismissed a legal challenge to the Communities Secretary’s decision to grant planning permission to a fracking company for exploratory works at a site in Lancashire.

The Communities Secretary had given planning permission on 6 October 2016 following a planning inquiry. Oil and gas company Cuadrilla had appealed after Lancashire County Council had refused to grant permission for the works at the Preston New Road site because of the noise and traffic impact.

In Preston New Road Action Group v Frackman & Ors [2017] EWHC 808 (Admin) (12 April 2017) the claimants – Preston New Road Action Group (PNRAG) and Gayzer Frackman – advanced separate grounds of challenge.

PNRAG’s grounds included that:

• The planning inspector incorrectly interpreted a policy of the Joint Lancashire Minerals and Waste Core Strategy;
• The inspector reached inconsistent conclusions, giving rise to an error of law;
• The Communities Secretary adopted an unlawful interpretation of paragraph 109 of the National Planning Policy Framework (enhancing the natural and local environment).
• There was a failure to properly interpret policy DM2 of the Lancashire Waste Minerals Local Plan: Site Allocation and Development Management Policies Part 1, and, in addition, a failure to supply legally adequate reasons in respect of the relationship of the development to this policy.

The judge, Mr Justice Dove, said all these grounds were arguable but none were substantiated in the final analysis.

Frackman meanwhile argued that:

• The decision reached by the Communities Secretary was unlawful on the basis that the ES [Environmental Statement] produced in support of the application was defective as it did not provide a comprehensive assessment of the cumulative impacts which arose in the case.
• It was irrational for the minister to have approved the application on the basis that in the light of the evidence, and applying the precautionary principle, he could not have rationally concluded that it was appropriate to grant consent, and that public health and other associated impacts would be reduced to an acceptable level and effectively controlled by the regulatory regime.

Mr Justice Dove said Frackman’s first ground was arguable but had not been made out in substance. The judge found that the second ground was not arguable so permission to apply for judicial review in that respect was refused.

Cuadrilla chief executive Francis Egan told the BBC: "We respected the democratic right of those opposed to this consent to challenge the Secretary of State's decision.

"However, we always remained confident the planning consent would stand."