Factual and Procedural Background
The appeals concern the lawfulness of planning permissions granted by the Secretary of State for Communities and Local Government for exploration works involving hydraulic fracturing ("fracking") to test shale gas feasibility at two sites in Lancashire. The appellants, a local action group and an individual, challenged the Secretary of State's decisions allowing appeals by two companies (collectively referred to as "Company A") against refusals of planning permission by the county council acting as mineral planning authority.
Company A's proposals involved exploration works including exploratory wells, monitoring, and eventual restoration of the sites to agricultural use. In June 2015, the county council refused applications for exploration at both sites but granted permission for monitoring works at one site. Company A appealed. An inspector held an inquiry and made recommendations in July 2016. The Secretary of State's decision in October 2016 allowed some appeals and re-opened the inquiry on one site for further evidence on highway safety. Subsequent challenges under section 288 of the Town and Country Planning Act 1990 were dismissed by the Administrative Court judge. The present appeals arise from those dismissals.
Legal Issues Presented
- Whether the Secretary of State misinterpreted or misapplied Policy CS5 of the Joint Lancashire Minerals and Waste Development Framework Core Strategy.
- Whether the Secretary of State misinterpreted or misapplied Policy DM2 of the Joint Lancashire Minerals and Waste Local Plan.
- Whether the Secretary of State misapplied paragraph 109 of the National Planning Policy Framework (NPPF) regarding protection of valued landscapes.
- Whether the Secretary of State's decisions were vitiated by procedural unfairness related to the application of Policy EP11 of the Fylde Local Plan.
- Whether the Secretary of State failed to properly assess indirect, secondary, or cumulative environmental effects under the Environmental Impact Assessment (EIA) Directive and Regulations.
- Whether the Secretary of State failed to consider environmental effects at the earliest possible stage as required by the EIA regime.
- Whether the Secretary of State's approach was inconsistent in weighing benefits of shale gas production without considering associated harms.
- Whether the Secretary of State failed to apply the precautionary principle concerning potential health effects and regulatory assumptions.
Arguments of the Parties
Appellants' Arguments
- The Secretary of State and the inspector misinterpreted Policy CS5 by allowing temporary harm to the landscape, which the appellants argued was not permitted by the policy.
- The Secretary of State misapplied Policy DM2 by failing to require a positive contribution to residential amenity and other considerations, and by improperly assessing the visual impact on residential properties.
- The protection of valued landscapes under paragraph 109 of the NPPF was misapplied by allowing any harm, temporary or otherwise, without recognizing it as a breach.
- The Secretary of State's procedural fairness was breached because the relevance of Policy EP11 was altered during the inquiry without giving the appellants an opportunity to respond.
- Under the EIA regime, the Secretary of State failed to consider indirect and cumulative environmental effects, particularly the extended flow testing phase and potential future production impacts.
- The Secretary of State failed to assess environmental effects at the earliest possible stage.
- The Secretary of State was inconsistent in considering benefits of shale gas production without weighing the harms.
- The Secretary of State failed to apply the precautionary principle by discounting uncertainties about health impacts and assuming effective operation of regulatory regimes.
Respondents' Arguments
- The Secretary of State and inspector properly interpreted Policy CS5 as a strategic policy allowing planning judgment to weigh temporary harm against mitigation and restoration.
- Policy DM2 supports development where harm is reduced to acceptable levels; a positive contribution is encouraged but not mandatory.
- Paragraph 109 of the NPPF is a high-level strategic objective requiring overall planning judgment, including consideration of temporary harm and mitigation.
- There was no procedural unfairness as the appellants had ample opportunity to address the relevance of Policy EP11 during the inquiry, including cross-examination and closing submissions.
- The EIA assessment was legally adequate because the project under consideration was limited to exploration; future production would be subject to separate applications and assessments.
- The environmental statement comprehensively assessed greenhouse gas emissions and other environmental effects relevant to the exploration project.
- The Secretary of State's conclusions on benefits and harms were consistent and properly distinguished exploration from production phases.
- The precautionary principle was applied appropriately; the regulatory regime was assumed to operate effectively, and the inspector's conclusions on health impacts were rational and supported by evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37 |
Principles governing interpretation and application of planning policies and the limits of judicial review in planning decisions. |
The court applied the principle that planning policies should be read in context with common sense and that courts must respect planning judgment without overstepping their role. |
| Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 |
Clarification on the judicial approach to reviewing planning decisions and policy interpretation. |
Supported the approach to defer to planning judgment and the proper reading of planning policy. |
| Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983 |
Distinction between statutory interpretation and planning policy interpretation. |
Reinforced that planning policies are to be interpreted in their planning context, not as statutory provisions. |
| Europa Oil and Gas Ltd. v Secretary of State for Communities and Local Government [2013] EWHC 2643 (Admin) |
Recognition that mineral working must occur where minerals lie and that landscape impacts may be temporary and reversible. |
Supported the understanding of Policy CS5 in allowing temporary landscape harm with restoration. |
| R. (on the application of TW Logistics Ltd.) v Tendring District Council [2013] EWCA Civ 9 |
Policies within a development plan should be read as a coherent whole. |
Supported reading Policies CS5 and DM2 together as complementary. |
| Hopkins Developments Ltd. v Secretary of State for Communities and Local Government [2014] EWCA Civ 470 |
Principles of procedural fairness and the right to be heard in planning inquiries. |
Applied to assess whether appellants had a fair opportunity to address issues arising during inquiry. |
| Abraham v Region Wallonne (Case C-2/07) [2008] ECR I-1197 |
EIA Directive principles on assessing direct and indirect effects, including cumulative effects. |
Distinguished as not applicable because the project was limited to exploration, separate from production. |
| Ecologistas v Ayuntamiento de Madrid (Case C-142/07) [2009] PTSR 458 |
Requirement to assess composite projects as a whole under the EIA Directive. |
Distinguished on facts; no salami-slicing of a single project here. |
| R. (on the application of Brown) v Carlisle City Council [2011] Env LR 5 |
Assessment of cumulative and indirect effects under EIA. |
Distinguished because the exploration project was free-standing and not part of a larger project. |
| R. (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] Env LR 27 |
Requirement for environmental effects to be assessed at the earliest possible stage. |
Confirmed that the assessment was timely and properly confined to the project under consideration. |
| Brussels Hoofdstedelijk Gewest v Vlaams Gewest (Case C-275/09) [2011] Env LR 26 |
Assessment of successive development stages under EIA. |
Confirmed that separate projects require separate assessments; no premature assessment of hypothetical future stages. |
| West Midlands Probation Committee v Secretary of State for the Environment and Walsall Metropolitan Council (1998) 76 P & CR 589 |
Recognition that public concern can be a material planning consideration. |
Applied to weigh public health concerns in the planning balance. |
| R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564 |
Deference to expert regulatory bodies in environmental and health matters. |
Supported the conclusion that the regulatory regime would operate effectively and that planning judgment was rational. |
| CILFIT v Ministry of Health (Case C-283/81) [1982] ECR 3415 |
Doctrine of acte clair and when to refer questions to the Court of Justice of the European Union. |
Confirmed no need for reference as issues were clear. |
Court's Reasoning and Analysis
The court approached the appeals by carefully examining the relevant development plan policies, national planning policy, and the Environmental Impact Assessment regime, applying established legal principles and recent authorities.
Regarding Policy CS5, the court held it to be a strategic policy setting out objectives for sustainable minerals production, not intended to be applied literally without regard to other policies. The court found that Policy DM2, a more detailed policy, provides criteria for reducing harm to acceptable levels, including through planning judgment on the nature and duration of harm. The inspector and Secretary of State's acceptance that temporary harm could be acceptable when mitigated and restored was lawful and consistent with the policies.
On Policy DM2, the court found that the policy supports development where harm can be eliminated or reduced to acceptable levels and encourages positive contributions where appropriate but does not require them as a prerequisite. The inspector's and Secretary of State's planning judgments on visual impact and residential amenity were rational and lawful.
The court interpreted paragraph 109 of the NPPF as a broad strategic objective requiring planning judgment, including consideration of temporary harm and mitigation. The inspector's conclusion that the development would not conflict with this policy in the long term was proper.
Procedural fairness was considered in relation to Policy EP11 of the Fylde Local Plan. The court found that the appellants had a fair opportunity to address the issue during the inquiry through cross-examination and submissions. The inspector and Secretary of State's conclusion that the policy was not relevant to these temporary mineral exploration works was legally sound.
Concerning the EIA issues, the court emphasized that the project under consideration was limited to exploration and monitoring, distinct and separate from any future production phase. It held that the Secretary of State was correct not to assess indirect, secondary, or cumulative effects arising from hypothetical future production. The environmental statement was found comprehensive and compliant with the EIA regulations.
The court rejected arguments that the assessment was untimely or inconsistent in weighing benefits and harms, noting that exploration and production phases must be considered separately under national policy and guidance.
On the precautionary principle and health concerns, the court found that the inspector and Secretary of State rationally relied on the regulatory regime's effectiveness and expert evidence. The presence of scientific uncertainty did not render their conclusions unlawful or irrational. The court also distinguished this case from others where environmental controls were absent or insufficient.
Finally, the court declined to make a reference to the Court of Justice of the European Union, finding the legal questions to be clear.
Holding and Implications
DISMISSED
The court dismissed both appeals, upholding the Secretary of State's decisions granting planning permission for the shale gas exploration projects. The court found no errors of law in the interpretation or application of relevant development plan policies, national planning policy, or environmental impact assessment requirements. It also found no procedural unfairness or failure to apply the precautionary principle.
The direct effect of this decision is to confirm the lawfulness of the planning permissions granted for the exploration works by Company A at the two Lancashire sites. The court did not establish any new precedent but reaffirmed established principles in planning law, environmental assessment, and procedural fairness in the context of mineral exploration projects.