Judge rejects legal challenge to written ministerial statement on fracking definition

A High Court judge has dismissed an application for a judicial review challenge over a written ministerial statement (WMS) requiring local authorities to “recognise” the statutory definition of fracking, it has been reported.

The case was brought by Cllr Paul Andrews, Mayor of Malton in North Yorkshire.

The WMS, which was issued on 17 May 2018, stated that local authorities should ‘recognise’ the statutory definition of fracking set out in the Petroleum Act 1998 (as amended by the Infrastructure Act 2015).

Garden Court Chambers’ Marc Willers QC, counsel to the claimant, argued that if local authorities were to adopt that definition – which relates to the volume of fluid used in the process, rather than the nature of the process itself – then it could lead to fracking operations (which use slightly less fluid than the statutory threshold) being granted planning permission in areas of outstanding natural beauty and national parks, such as the North York Moors.

He also contended that such a fundamental change in planning policy ought to have been the subject of a Strategic Environmental Assessment (SEA) and that the failure to conduct one rendered the WMS unlawful.

Mr Justice Holgate however concluded that there was no need for an SEA of the 2018 WMS and he dismissed the application for permission to judicial review the WMS.

Commenting on the ruling, Garden Court noted that the judge “found that the reference in the 2018 WMS to an expectation that Mineral Planning Authorities (MPAs) ‘recognise’ the fact that Parliament has defined fracking in legislation was no more than that.

“He made the point that once MPAs had noted the existence of that definition, they were perfectly entitled to apply the wider definition contained in paragraph 129 of Planning Practice Guidance – provided of course that they explain their reasons for doing so (as the Joint Authorities in North Yorkshire have already done).”

Cllr Andrews told the Drill or Drop website: “While we were disappointed that the judge did not allow us to proceed with the judicial review, we are delighted that he has stated that local authorities could disregard government planning guidance on issues such as the definition of fracking provided there was sufficient justification.

“This should allow The North Yorkshire Plan, which was developed over a number of years by our elected representatives in collaboration with local residents and the oil and gas industry, to be approved as it stands.”