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CUADRILLA FRACKING APPEALS OPEN IN BLACKPOOL

A Public Inquiry into four planning appeals under s.78 of the 1990 Town and Country Planning Act have opened in Blackpool in Lancashire, against the decision of Lancashire County Council to refuse to permit drilling at two well sites in Little Plumpton and Roseacre Wood, hydraulic fracturing those wells and flow-testing the shale gas, and associated monitoring works. The appeals are listed to last for 5 weeks.

They are the first appeals to consider the Government’s shale gas policy, and have all been recovered by the Secretary of State for his personal determination. The appeals have raised a number of interesting, and inevitably controversial, issues.

First, there is the application of the presumption in favour of planning permission contained within paragraph 14 of the National Planning Policy Framework (NPPF). The Appellant argues that because the development plan does not expressly provide for hydrocarbons expressly, in line with the PPG, it must be either absent, silent or out-of-date. However, absence and silence have been interpreted as a high threshold, see Lindblom J in Bloor Homes East Midlands Limited v SSCLG [2014] EWHC 754 (Admin.). As to whether a policy is “out of date” by reference to paragraph 215 NPPF, the Inspector will have to resolve whether a given policy is inconsistent with the corresponding parts of the NPPF.

Second, there is a significant conflict in the expert noise evidence, between whether to use the British Standard for construction and open cast sites, or to use the British Standard for industry and commercial sources of noise – in short whether the drilling and fracturing operation (nearly 2 years) is akin to a construction site or an industrial site. There is also dispute as to the extent to which the WHO Night Noise Guidelines (2009) replace the WHO Community Noise Guidelines (1999) on Lowest Observed Adverse Effect Level (SOAEL) and Significant Observed Adverse Effect Level (LOAEL), or indeed whether LOAEL and SOAEL in WHO Guidelines are targeted to, less intrusive, anonymous (transport) noise, rather than noise with a specific character, as the appeal schemes are said to be.

Third, there is debate as to the weight to attach to the Joint Ministerial Statement on Shale Gas “Shale Gas and Oil Policy” (16 September 2015) (“WMS”). However, that debate may ultimately be somewhat redundant as it appears to be common ground after the first week of cross-examination of the Appellant’s witnesses, that the WMS is not encouraging unsustainable (by reference to the NPPF) shale gas exploration. Thus an exploration project which conflicted with the NPPF judged objectively, as a whole, would not derive any support from the WMS.

Fourth, the weight to be attached to benefits. Planning permission is sought only for the exploration stage. It is a real possibility that following 6 years of exploration, shale gas is not commercially extractable at the proposed locations and thus the wells are decommissioned and plugged. Therefore, the decision taker can only place weight on the very small number of construction and security jobs that will be created to construct and maintain the wells, and the receipt of knowledge of the commercial viability of extracting shale gas at the locations. Placing weight on the benefits of a wider commercial shale gas industry in the North West is highly unlikely given that this would require at least a further planning application and may not even be a commercial reality.

Without question these appeals are a definitive test for the fledgling shale gas industry in England (readers will know that hydraulic fracturing is not presently permitted in Scotland or Wales). The seven planning barristers appearing in the appeals, including Prospect Law’s Ashley Bowes, reflects the scale of the financial stakes and the importance and complexity of the legal issues under consideration.

 

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resource projects in the UK and internationally.

This article is not intended to constitute legal advice and Prospect Law and Prospect Energy accepts no responsibility for loss or damage incurred as a result of reliance on its content. Specific legal advice should be taken in relation to any issues or concerns of readers which are raised by this article.

This article remains the copyright property of Prospect Law and Prospect Energy and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Energy

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A STEP CLOSER TO FRACKING?

Britain has moved a step closer to ‘Fracking’ with the news that a decision to block the extraction of Shale Gas in South Lancashire could now be overturned by the Secretary of State.

Although a local planning inspector at Lancashire County Council will still hear the Energy firm’s appeal in February as per the usual course in planning appeals, they will now only have the power to compile a report and forward suggestions. A final decision will instead lie in the hands of Greg Clark, the Secretary of State for the Department for Communities and Local Government, who has chosen to depart from the usual process because the prospect of extracting Shale Gas is a matter of “major importance having more than local significance”.

This follows Mr Clark’s September decision to afford himself a final say over planning appeals concerning Shale Gas, as s.62A of the Town and Country Planning Act 1990 allows him to do.

In June of this year, Cuadrilla’s applications to instigate ‘Fracking’ at two sites, Roseacre Wood and Little Plumpton, were rejected by Lancashire County Council’s Development Control Committee, with nine from the fourteen strong committee rejecting the proposals on the grounds that the sight of Fracking operations and the noise arising from them would cause an ‘unacceptable adverse impact” on the rural setting that was to host them.

As we previously reported, central government have appeared keen to promote ‘Fracking’ despite indications that support for the technique has reached an all time low. Moreover, with opposition to the extraction of Shale Gas often heard at local levels, the significance of this development cannot be underestimated. Groups such as Friends of the Earth have been quick to voice concerns that this development will help to sideline local opinions.

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resources projects in the UK and internationally.

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

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FALL IN PUBLIC SUPPORT FOR FRACKING

The government are failing to win public support for Fracking, with surveys hinting at a sharp decline in public support despite efforts to create a market for Shale Gas.

YouGov and the University of Nottingham have studied public reactions to Fracking extensively since early 2012. The results of their latest survey, involving over 6,000 people, suggested that little more than one in ten people now support the technique. If its previous studies are to be believed, support for Fracking reached a high of nearly 40% in July 2013.

More correctly known as hydraulic fracturing, ‘Fracking’ involves pumping a mixture of chemicals and sand into rock fractures so as to extract gas and oil. The technique dates back to the 1940’s. In the UK, areas such as Nottingham, Derbyshire and parts of Leicestershire have long been known to have excellent potential for the extraction of shale gas.

In spite of this, ‘fracking’ has been suspended in the UK since 2011, when drilling in Blackpool was linked to minor earthquakes. Earlier this year, two planning applications, submitted by Cuadrilla, were also rejected by Lancashire County Council amidst vocal opposition, with the decision issued on the grounds that operations could cause auditory and visual pollution in a rural landscape. Opponents of Fracking also frequently contend that drilling has the potential to pollute drinking water.

Nonetheless, in recent years the government has appeared keen to change public perceptions; reducing the subsidies available for wind and solar energy whilst insisting that Fracking could be key to making the UK energy self-sufficient. Companies like Cuadrilla, GDF Suez and Ineos have recently been granted over 1000 miles of land to explore for potential fracking, whilst another 5000 square miles will be subject to consultation, given their proximity to protected areas.

Yet falling support has also been reported in research conducted by the Department for Energy and Climate Change (DECC), who interviewed over 2000 households in July and found a support rate of approximately 21%, 6% lower than in February last year. The DECC Public Attitudes Tracker seemed to suggest a public preference for wind and solar, finding that 75% of the public supported sources of renewable energy.

Although these results suggest they are facing an uphill struggle, DECC have made a clear commitment to Fracking; they have previously argued that it could contribute billions to the UK economy. As such, it would be surprising to see them give up their battle to convince the public right now.

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resources projects in the UK and internationally.

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

For a PDF of this Blog click here

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CUADRILLA’S FRACKING APPLICATIONS REFUSED BY LANCASHIRE COUNTY COUNCIL

Ashley Bowes, Prospect Law

For nearly a year and a half Lancashire County Council Development Control Committee heard extensive evidence from its own officers, the public and the applicant at a series of public hearings concerning two planning applications. Cuadrilla had sought permission for the construction and operation of four wells, drilled from a single large well-pad, with each well being subjected to hydraulic fracturing (fracking). The operation was expected to run 24 hours a day with fracking occurring for two months, followed by a three month initial period to test the flow of hydrocarbons (gas) and then 18-24 months of extended flow testing. They represented the largest appraisal of fracking in the UK.

The first site, at Roseacre Wood, was recommended for refusal on the grounds of its transport impact. The second site, at Preston New Road, although initially also recommended for refusal, was subsequently recommended for approval following further noise evidence from the applicant.

The scene was therefore set for a tense development control meeting on 23-24 June. On 24 June a motion to refuse the application was moved and seconded but, following an adjournment, was defeated on the Chairman’s casting vote. It emerged that in the adjournment the Council received telephone advice from David Manley QC to the effect that the Council would be acting unreasonably to refuse the application and would expose itself to costs at appeal. A subsequent motion was passed to make that legal advice public.

In response to which, Friends of the Earth sought advice from Richard Harwood QC and the Preston New Road Action Group sought advice from Ashley Bowes. Both barristers’ advice concluded that there were grounds to refuse the application on the evidence before the Committee.

At its reconvened meeting on 29 June, a motion to refuse the application was passed on Ashley Bowes’ suggested reasons, which read as follows:

“The development would cause an unacceptable adverse impact on the landscape, arising from the drilling equipment, noise mitigation equipment, storage plant, flare stacks and other associated development. The combined effect would result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP11 Fylde Local Plan.”

“The development would cause an unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP27 Fylde Local Plan.”

Cuadrilla has six months in which to decide whether to appeal. If Cuadrilla does choose to appeal against the refusals a public inquiry is highly likely, at which the Inspector will have to grapple with the competing expert evidence (especially on noise impact).

It is also likely that any appeal will be recovered by the Secretary of State for determination, in order to give a determinative policy steer for future applications.

Reacting to the decision the UK Onshore Oil and Gas urged the Government to take a “strategic review” of how the planning system deals with these applications. However, the Prime Minister appeared not to signal any imminent change to the system, responding at Prime Minister’s Questions on 1 July that: “those decisions must be made by local authorities in the proper way, under the planning regime we have”.

 

Introduction to Prospect Law and Ashley Bowes

Prospect Law Ltd is an energy specialist UK law firm which is based in London and the Midlands. Prospect Energy Ltd is its sister company providing technical expertise. The two firms provide advice on energy development projects and energy related litigation concerning shale gas, nuclear and renewable energy schemes for clients in the UK and internationally.

Ashley Bowes is a barrister who specialises in planning and environmental law matters at planning appeals and in statutory challenges and judicial review cases in the High Court. He is involved in energy related development projects around the UK.

 

For a PDF of this article click here

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

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COSTS UPDATE FOR ENVIRONMENTAL LITIGATION

 

Ashley Bowes, Prospect Law

Developers, environmental groups and community organisations promoting or challenging shale gas/fracking or renewable energy schemes through the planning process should be aware of the caps on costs that may apply in applications for judicial review.

The 1998 Aarhus Convention requires that access to environmental justice is not “prohibitively expensive”.

A Claimant for judicial review after 1 April 2013 which concerns  an environmental  matter  may choose to  subject the claim to the cost caps in Civil Procedure Rules 45.41 to 45.43. The caps will apply where the Claimant indicates that it  wishes the caps to apply by simply ticking the appropriate box on the claim form.

The effect of the caps is that individual Claimants cannot be ordered to pay more than £5,000 to other parties should they lose; and commercial entities and not for profit organisations cannot be ordered to pay more than £10,000 should they lose. And both types of Claimant cannot recover more than £35,000 if they win. The figures include VAT and disbursements.

The caps are likely to be attractive to environmental groups and community groups challenging planning decisions. Developers and commercial organisations challenging decisions are less likely to be interested in the caps.

Where developers and commercial organisations wish to join a judicial review as an interested party in order to oppose a challenge to a planning decision, the cost caps are likely to prevent the developer or commercial organisation recovering costs in excess of the cap from an unsuccessful Claimant.

A Defendant in a judicial review (usually a government department or local authority) may dispute whether the Aarhus Convention applies when completing the Acknowledgement of Service, but:

  • If the Court decides the claim is an Aarhus Convention claim it will make an order for costs against the Defendant on the indemnity basis (i.e. a higher level of the Claimant’s costs will be recovered).
  • If the Court decides the claim is not an Aarhus Convention claim it will normally make no order for costs (.i.e. there is no penalty for the Claimant).
  • Given this unattractive costs regime together with the Venn judgment (see below), there is only likely to be a limited number of cases where a challenge as to whether the matter is within the scope of the Aarhus Convention is going to be worthwhile.

The rules have, not surprisingly, generated satellite litigation, which has added some clarity to the application of the rules in practice:

  • The rules only apply to claims for judicial review. They do not apply therefore to statutory appeals of planning decisions (s.288/289 Town and Country Planning Act 1990 and s.113 Planning and Compulsory Purchase Act 2004) see: Venn v SSCLG [2014] EWCA Civ. 1539.
  • The rules will apply to almost any judicial review of a planning decision (see Sullivan LJ in Venn at [15]-[18]).
  • Multiple claimants (such as unincorporated action groups) could benefit from a single £5,000 cap provided they all pursue the same case (otherwise it might be appropriate to cap each case at £5,000) see: R (Botley Action Group) v Eastleigh BC [2014] EWHC 4388 (Admin.) per Collins J at [125].

Practical points for Claimants are:

  • Use individual Claimants where possible.
  • Raise the costs matter in pre-action correspondence.
  • Provide full reasons why the Aarhus Convention should apply within the claim form.
  • If not a judicial review claim, consider applying for a Protective Costs Order applying the Corner House [2005] EWCA Civ. 192 criteria.

Practical points for Defendants or developers whose planning permission is being challenged and who are thinking about joining the judicial review as an interested party are:

  • Take a realistic view (will the litigation cost more than £5,000 – £10,000 to defend?).
  • Is it worth a hearing with negative cost consequences to dispute it?
  • Remember the £35,000 cap on a successful Claimant’s recovery.

 

Introduction to Prospect Law and Ashley Bowes

Prospect Law Ltd is an energy specialist UK law firm which is based in London and the Midlands. Prospect Energy Ltd is its sister company providing technical expertise. The two firms provide advice on energy development projects and energy related litigation concerning shale gas, nuclear and renewable energy schemes for clients in the UK and internationally.

Ashley Bowes is a barrister who specialises in planning and environmental law matters at planning appeals and in statutory challenges and judicial review cases in the High Court. He is involved in energy related development projects around the UK.

For a PDF of the article click here

 

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.