Preston New Road Action Group v Frackman & Ors

This judgment concerns two applications for statutory review pursuant to section 288 of the Town and Country Planning Act 1990 in relation to a decision by the defendant given on 6^th October 2016 to grant planning permission in respect of development described in greater detail below. The ordering and inclusion of the second, third and fourth defendants above differs between the two actions but for the sake of convenience they have been reordered for the purposes of identification within this judgment. The second defendant took no part in the hearing of these matters (although they had a representative present at the hearing). Hereafter the first defendant will be identified as the “defendant” and the third and fourth defendants, who were jointly legally represented throughout, will be referred to as the “developer”. The second defendant will be referred to as the “County Council”.

There were two sites concerned in the defendant’s decision of 6^th October 2016 and four subsequent appeals, two for each site. For the purposes of this judgment the two sites will be referred to as the “Preston New Road site” and the “Roseacre site”. For each site the developer had proposals for, firstly, exploratory work and, secondly, monitoring. Whilst the proposals and the outcome of the appeals are dealt with in greater relevant detail below, in broad terms the defendant allowed the appeals on the Preston New Road site and granted planning permission for both the exploratory works and the monitoring works. On the Roseacre site the defendant indicated that he was minded to allow the appeal by the developer against the County Council’s refusal of the exploratory works and grant planning permission, subject to being satisfied that highway safety issues which were identified by the Inspector could be satisfactorily addressed; the defendant proposed to reopen the public inquiry to examine those issues. In relation to the monitoring works on the Roseacre site the particular issue upon which the appeal was based was the developer’s concern as to the conditions which had been imposed by the second defendant when granting planning permission. The defendant allowed the appeal by deleting conditions and substituting alternative conditions set out in the decision letter.

The subject matter of both applications is solely the decision to allow the appeal and grant planning permission in respect of the exploratory work at the Preston New Road site. At one point the second claimant sought to include within his claim a challenge to the “minded to allow” decision reached on the exploratory works at the Roseacre site. At the hearing it was clarified that there was no longer any challenge to the decision on the Roseacre exploratory works. For the record, there is presently an application for judicial review before the court in relation to the decision reached by the defendant in respect of the Roseacre exploratory works appeal, and in particular his decision to reopen to inquiry rather than to dismiss the appeal as recommended by the Inspector.

The structure of this judgment is as follows. Firstly, it examines the proposal and the decision reached on that proposal by the County Council. Secondly, the evidence before the Inspector at the inquiry in relation to the appeal is described. Thirdly, the judgment addresses the Inspector’s Report (“the report”). Next the judgment turns to the decision which was reached by the defendant (“the decision”). The grounds raised by the first claimant are dealt with separately from those raised by the second claimant since they are based on very different legal contentions. Since the law is similar in relation to the first claimant’s Grounds 1, 2, 3 and 5 those are dealt with together. The first claimant’s Ground 4, which raises different legal considerations, is dealt with separately. The judgment then turns to the second claimant’s Grounds and deals separately with the second claimant’s Grounds 1 and 2.

As I indicated at the hearing, I am extremely grateful to the parties for the considerable hard work that went into the preparation of the papers for the hearing of this case, which greatly assisted the smooth running of the hearing. I am also indebted to counsel on all sides for their careful, helpful and focused submissions. Part of the preparation process involved the settling of a schedule of agreed legal propositions which provide the background to the legal discussions set out below and which are appended to this judgment as Appendix 1.

On 29^th May 2014 the developers applied to the County Council for planning permission for development described in the following terms:

“Construction and operation of a site for drilling up to four exploratory wells, hydraulic fracturing of the wells, testing for hydrocarbons, abandonment of the wells and restoration, including provision of an access road and access onto the highway, security fencing, lighting and other uses ancillary to the exploration activities, including the construction of a pipeline and a connection to the gas grid network and associated infrastructure to land to the north of Preston New Road, Little Plumpton.”

The period of the works was described as being six years. The application was accompanied by an Environmental Statement (“the ES”). The Non-Technical Summary of the ES explained that underlying the site, and indeed the wider area within which the site is situated, was a geological formation known as the Bowland Shale that is understood to contain significant quantities of natural gas. The developers had the benefit of a licence to undertake shale gas exploration over an area of land including the site. The purpose of the works was “primarily to determine whether the natural gas contained with the shale can be extracted and whether it is likely to be economical to do so”. The development proposal itself involved the construction of a temporary flat working area, known as the well pad, followed by the drilling of four wells into the ground to a maximum depth of 3,500 metres below the ground’s surface. The wells were to be drilled vertically to a variety of depths followed by then being drilled horizontally for up to 2,000 metres. Once drilled, the wells would be lined, after which the hydraulic fracturing process would begin.

Hydraulic fracturing (which is also referred to in this judgment interchangeably with the more colloquial term “fracking”) involves pumping fluid under high pressure into the wells with a view to opening up millimetre sized gaps or cracks, thereby releasing the natural gas trapped in the shale. The fluid used is largely water, but also contains sand particles (to hold open the cracks) and other chemicals in solution to assist the process. The injected fracturing fluid is allowed to flow back to the surface (referred to below as flowback fluid) and then, to the extent possible, reused. Flowback fluid that is not used is stored on the site prior to being taken offsite to an approved treatment facility. The Non-Technical Summary indicates an estimate of two months to complete the hydraulic fracturing of each of the wells. Following the completion of the hydraulic fracturing operation, initial flow testing for a period of up to 90 days occurs. During the course of this initial flow testing, the gas produced is measured, both in terms of its flow rate and composition, and then burnt in enclosed flare stacks approximately ten metres tall and three metres in diameter.

If the initial flow testing demonstrates that the flow of gas from the wells is sufficient, there then follows a period of extended flow testing for 18–24 months for each well. At this point the gas extracted from the shale would not be burnt in the flare stacks, but instead the well would be connected to the gas grid for use by residential, business or industrial end-users. At the end of the exploration activities described above, the Non-Technical Summary describes the decommissioning and restoration of the site. This involves removing the above ground apparatus and cutting off each well at least two metres below ground level and sealing it. The well pad would be removed and the soil which had been stored as part of the operations to construct the well pad would be redistributed across the site, and the site would be returned to an agricultural land use. The Non-Technical Summary concludes the description of the development and activities by stating the following:

“If the exploration work proves that the flow of natural gas from the shale would support long term shale gas production the Site, a new planning application and ES could be prepared and submitted for approval. However, this would be dependant on there being sufficient gas present in this area of the Bowland Shale.”

The application was validated by the County Council on 5^th June 2014. Having accepted that the application amounted to a project which required an ES pursuant to the Town and Country Planning (Environmental Assessment) Regulations 2011 (the “EIA Regulations”), the developer sought a scoping opinion from the County Council in March 2014. This led to the preparation of the ES provided with the application. On 7^th November 2014, pursuant to Regulation 22 of the EIA Regulations, further information on various types of environmental impact was requested by the County Council. Additional Regulation 22 requests were made on 28^th November 2014, 5^th December 2014 and 26^th February 2015. The developer provided a response in relation to each of these requests and the further information provided alongside the ES comprised the “environmental information” required to be taken into consideration by the decision-taker in accordance with Regulation 3(4) of the EIA Regulations, which are considered in greater detail below.

It appears that after consultation had taken place the application was recommended for refusal by the County Council’s officers in January 2015. Following the submission of further information in January and March 2015 the application was subsequently recommended for approval by officers. The planning committee did not accept that recommendation and refused the application on 29^th June 2015. There were two reasons for refusal as follows:

“1.

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 policy DM2 of the Fylde Local Plan.

2.

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

On 11^th September 2015 the developers appealed the County Council’s refusal of the application. The first claimant was granted status as a main party under Rule 6 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (the “Inquiries Procedure Rules”) on 24^th September 2015. In accordance with the Inquiries Procedure Rules the first claimant submitted a Statement of Case on 16^th November 2015. At paragraph 5.1 of their Statement of Case the first claimant described the contentions which it proposed to advance at the inquiry in the following terms:

“5.1.

PNRAG will call evidence at the inquiry to demonstrate that the appeal scheme:

5.1.1.

will cause demonstrable harm to important and valued landscape and is therefore contrary to save policies SP2, SP9 and EP11 Fylde Local Plan, policy DM2 Joint Lancashire Minerals and Waste Local Plan and policy CS5 Joint Lancashire Minerals and Waste Core Strategy…

5.1.3.

will consequentially cause unacceptable harm to the amenity of residential occupiers by virtue of its urbanising effects, light, and noise emissions, contrary to saved policy EP28 Fylde Local Plan, policy DM2 Joint Lancashire Minerals and Waste Local Plan and policy CS5 Joint Lancashire Minerals and Waste Core Strategy, in addition to paragraphs 17, 109, 123 and 144, NPPF.”

It is worthwhile at this stage to set out the policies referred to by the first claimant in their Statement of Case that also formed the centrepiece of their submissions in their application before the court. In terms of the Development Plan, and dealing with matters chronologically, the first policy in point is policy EP11 of the Fylde Local Plan (as altered October 2005) which provides as follows:

“Policy EP11

New development in rural areas should be sited in keeping with the distinct landscape character types identified in the landscape strategy for Lancashire and the characteristic landscape features defined in Policy EP10. Development must be of a high standard of design. Matters of scale, features and building materials should reflect the local vernacular style.”

The next policy is policy CS5 from the Joint Lancashire Minerals and Waste Development Framework Core Strategy DPD (adopted February 2009) which provides as follows:

“Criteria will be developed for the site identification process, and also for considering other proposals brought forward outside the plan-making process, to ensure that:

(i)

our natural resources including water, air, soil and biodiversity are protected from harm and opportunities are taken to enhance them;

(ii)

features and landscapes of historic and cultural importance and their settings are protected from harm and opportunities are taken to enhance them;

(iii)

workings will not adversely contribute to fluvial flood risks or surface water flooding;

(iv)

proposals for mineral workings incorporate measures to conserve, enhance and protect the character of Lancashire’s landscapes;

(v)

the amenity, health, economic well-being and safety of the population are protected by the introduction of high operating standards, sensitive working practices and environmental management systems that minimise harm and nuisance to the environment and local communities throughout the life of the development;

(vi)

essential infrastructure and services to the public will be protected;

(vii)

sensitive environmental restoration and aftercare of sites takes place, appropriate to the landscape character of the locality and the delivery of national and local biodiversity action plans. Where appropriate, this will include improvements to public access to the former workings to realise their amenity value.”

The Joint Lancashire Minerals and Waste Development Framework Core Strategy DPD was followed by the Joint Lancashire Minerals and Waste Local Plan Site Allocation and Development Management Policies Part 1 in September 2013. Policy DM2 together with relevant elements of its explanatory text or Justification provide as follows:

“Policy DM2 - Development Management

Development for minerals or waste management operations will be supported where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels. In assessing proposals account will be taken of the proposal's setting, baseline environmental conditions and neighbouring land uses, together with the extent to which its impacts can be controlled in accordance with current best practice and recognised standards.

In accordance with Policy CS5 and CS9 of the Core Strategy developments will be supported for minerals or waste developments where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that the proposals will, where appropriate, make a positive contribution to the:

•

Local and wider economy

•

Historic environment

•

Biodiversity, geodiversity and landscape character

•

Residential amenity of those living nearby

•

Reduction of carbon emissions

•

Reduction in the length and number of journeys made

This will be achieved through for example:

•

The quality of design, layout, form, scale and appearance of buildings

•

The control of emissions from the proposal including dust, noise, light and water.

•

Restoration within agreed time limits, to a beneficial afteruse and the management of landscaping and tree planting.

•

The control of the numbers, frequency, timing and routing of transport related to the development”

Finally, paragraph 109 of the National Planning Policy Framework (“the Framework”) provides as follows:

“11.

Conserving and enhancing the natural environment

109.

The planning system should contribute to and enhance the natural and local environment by:

•

protecting and enhancing valued landscapes, geological conservation interests and soils.”

On 19^th November 2015 the Inspector who had been appointed to deal with the appeal held a Pre-Inquiry Meeting. The purpose of the meeting was to discuss the administrative arrangements for the public inquiry. These discussions included representations in relation to the timetable for the public inquiry (required by rule 8 of the Inquiries Procedure Rules). The minutes of the Pre-Inquiry Meeting record the following in relation to submissions made by the Roseacre Awareness Group (“RAG”), which were endorsed by the first claimant, in the following terms:

“37.

RAG explained that in terms of equality of arms, it did not have deep pockets. If the appeals were all dealt with together then it would need to be present on each day of the Inquiry. There were two separate sites and each should be looked at separately to avoid placing an unfair burden upon the Rule 6 party. The case advanced by RAG was on specific issues and the scope for repetition should be small. PNRAG supported an approach that dealt with each site separately. The Treales, Roseacre and Wharles Parish Council also drew attention to the four separate applications that are the subject of these appeals and the resource and time implications that the consideration of the appeals would have for small groups…

39.

In response, the Appellants acknowledged the importance of the Inquiry proceeding in a way that was fair to all, but pointed out that in terms of its evidence, Mr Smith would give evidence that would cover both sites in generic terms. For him to cover both sites separately would only prolong the Inquiry and for that reason he should be called once and cross-examined once. The same considerations applied to the Appellants’ noise witness. It was also noted that the noise witness was not available for the third week of the Inquiry. However, there could be a separate session dealing with the Roseacre Wood site traffic issues. The Appellants’ traffic witness was available throughout and could be called separately for each site on that issue. Furthermore, it would seem that little of the landscape evidence was generic and for the most part, his evidence could be dealt with in two parts to assist the Rule 6 parties. The North & Western Chamber of Commerce supported the appeals proceeding together rather than on a site specific basis.”

The Pre-Inquiry Meeting also discussed the deadline for the submissions of proofs of evidence, which was set for 19^th January 2016. Shortly after the Pre-Inquiry Meeting, on 25^th November 2015, the defendant exercised his power under section 79 of the 1990 Act to recover the appeals for his own determination.

Within the documentation for these proceedings a substantial amount (but by no means all) of the written evidence in the form of proofs of evidence has been provided to the court. For the purposes of determining the issues which arise in the case it suffices for a summary of the salient aspects of the proofs of evidence to be provided in this judgment. On behalf of the developers, Mr Smith gave evidence on planning policy issues. In respect of policy EP11 Mr Smith observed as follows in paragraph 8.24 of his proof of evidence:

“8.24

The findings as set out above in relation to policy DM2 are also relevant to policy EP11. In my opinion even greater weight should be afforded to national policy and guidance when assessing the proposals for exploration in relation to policies of the Fylde Local Plan. This is due to the date of the Fylde Local Plan policy (2005). Given the age of the policy it does not address the specific issues and national need and benefits of hydrocarbon exploration and extraction, as set out in recent government statements.”

The findings which he alludes to in relation to policy DM2 were that in accordance with the evidence of his colleague Mr Tempany, a landscape architect and expert in landscape impact, he had concluded “that there will be no long lasting significant adverse change to the character of the landscape and any associated urbanising effect”.

On behalf of the first claimant, Mr Scott-Brown provided evidence both in relation to planning policy and also in respect of landscape and visual effects. He relied directly upon conflict with policy EP11, and further contended that the site and its setting were an area of valued landscape in the terms set out in paragraph 109 of the Framework. His contentions are aptly summarised in the following short extract from the conclusions of his proof of evidence:

“7.1

My conclusions in respect of this proposal in landscape terms are that the appeal proposals are in conflict with relevant policies of the Development Plan, namely EP11 and SP2 of the Fylde Borough Local Plan and EP27 in respect of Noise and policy DM2 of the Adopted Joint Lancashire Minerals and Waste Local Plan. Therefore the effective “presumption against” embodied in Section 38(6) of the Planning and Compulsory Purchase Act 2004 arises…

7.3

In my opinion, the site and its setting fall within an area of “valued countryside” within the meaning expressed in the NPPF para 109. As far as I can see it does not have to be “designated countryside” to meet this criterion. Following the advice of the Lancashire Landscape Strategy, and based on my own observations it is valued because of its openness of appearance and character. To seek to develop part of it for purposes unrelated to agriculture and related activities would cause avoidable harm.”

The County Council’s planning evidence was given by Mrs Atkinson. Within her proof she relied upon a breach of policy EP11 of the Fylde Local Plan, a policy which she regarded as being consistent with the spirit of the Framework. She also relied upon a breach of paragraph 109 of the Framework. Her conclusions in relation to policy EP11 were derived from supporting evidence provided by a landscape architect, Mr Maslen, called on behalf of the County Council.

It will be apparent from the foregoing that both the County Council and the developer called evidence from chartered members of the Landscape Institute. Mr Maslen was called on behalf of the County Council and Mr Tempany on behalf of the developer. Both proofs of evidence were explicitly prepared in accordance with guidance provided by the Landscape Institute, which provides a methodology for examining landscape and visual effects both for the purposes of producing environmental statements and also evidence for decision-taking. In particular, both witnesses prepared their evidence in accordance with the “Guidelines for Landscape and Visual Impact Assessment” published by the Landscape Institute and Institute of Environmental Management and Assessment in 2013 (“GLVIA”).

In essence, GLVIA provides a transparent methodology for the assessment of landscape and visual effects. Firstly, landscape effects, or the impact on landscape character, is analysed. That analysis is conducted by determining the sensitivity of the landscape and then gauging the magnitude of change which would occur as a result of the development being assessed. The scale of the effect on landscape character can then be determined by cross-referencing the sensitivity of the landscape with the magnitude of the change which would occur as a result of the development, so as to arrive at an assessment of the significance of any impact. A similar approach is taken to the assessment of visual effects. The sensitivity of visual receptors is identified from the representative view-points which are being analysed and then the magnitude of change in the view is assessed. By cross-referencing the sensitivity of the receptor with the magnitude of the change, the scale of the significance of the effect can be determined, from which a judgment can be reached as to the visual effects which would arise from the development.

In broad terms, both Mr Maslen and Mr Tempany went through this analysis expressing their judgments and the reasons for them, in respect of both the landscape character effects and the visual effects of the development. Whilst there were differences between them in relation to both the detail of the methodology and also the judgments which they reached, the process of applying the methodology enabled an understanding of why they had reached those different conclusions as to the impact of the proposals.

Mr Maslen concluded in relation to the visual effects in the following terms:

“8.6

In summary, significant effects may arise from the drilling, hydraulic fracturing and flow testing phase for the caravan park at Great Plumpton. Moderate adverse (but not significant) effects may be expected for receptors to two roads and a small fishing pond. Potentially significant effects may arise for around 11 residential receptors.

8.7

Arup’s report, as noted previously, does not assess specific receptors. However, it describes likely significant effects (based on its own methodology) for seven of the chosen viewpoints. Based on this information, I would argue that significant visual effects are likely to be greater than those reported in the Appellant’s LVIA.

8.8

Further to the significant effects expected from the drilling, hydraulic fracturing and flow testing phase, I would expect that similar effects will arise from the subsequent extended flow testing phase for sensitive receptors. Whilst the 53m drilling rig will no longer be in place, associated fencing, infrastructure and ancillary equipment will remain as an incongruous, industrial element in otherwise rural views until any eventual restoration is undertaken.”

His conclusions in relation to landscape character, in particular as measured against policies DM2 and EP11, were as follows:

“9.2

The character of the landscape in which the site sits is distinct from the urban areas to the east and west of the site. The adverse impacts of the proposals on the landscape character and the local visual amenity is significant and will change the character of this landscape. This change can be expressed as ‘urbanising’. The development has not eliminated or reduced to acceptable levels the landscape harm and as such it does not meet the requirements of support required in Policy DM2…

9.5

These policies combine to protect the distinct landscape character of the Borough. An important part of this objective is that the siting of the development should reflect the Borough’s landscape character types. My analysis of the local landscape character type identifies that the proposals will not be in keeping the landscape surrounding it. As such it is contrary to policy EP11.”

By contrast, Mr Tempany’s conclusions in relation to landscape character effects were expressed in the following terms:

“5.14

The appeal site occupies an extremely small proportion of the Fylde Drift Farmland landscape character area. Given that the Preston New Road exploration site occupies only a very small footprint of the overall ‘Fylde’ landscape character area, this development would have a negligible effect on the overall physical landscape character. This judgement would also apply to the monitoring arrays given their extremely localised footprint and contained character.

5.15

More locally, only a very few, minor and commonplace landscape components would be directly affected by the exploratory works, namely: a 40m length of existing hedgerow and a limited number of mature hedgerow trees to the Preston New Road frontage, plus lowering of existing hedgerows for the visibility splay.

5.16

I now consider impacts of the proposal upon perceptual landscape character, that is, the experience of the landscape, as described in paragraph 1.13 above.

5.17

Perceptual and indirect effects upon landscape character would only occur during the construction, drilling, fracturing and flow testing phases. The distance across which any indirect effects on the perceptual or aesthetic aspects of surrounding landscape assets might be experienced is tightly drawn with such effects being localised in occurrence…

5.22… I consider that the mitigation described in the ES to minimise localised landscape effects is reasonable and appropriate. Any localised changes to landscape components, for example the removal of hedgerows, would be fully remediated through the reinstatement of hedgerows and replacement hedgerow trees. It should be noted that the landscape would also be restored to its current condition on completion of the works.

5.23

In relation to the reasons for refusal, it is my judgement that the development at Preston New Road would not “cause an unacceptable adverse impact on the landscape’ nor would it ‘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 and EP11”.

Turning to the question of visual effects Mr Tempany concluded as follows:

“5.24

The ES acknowledges that there would be some significant adverse visual effects. These would arise during only the drilling, fracturing and initial flow testing phase and the intermittent use of a 53m high drilling rig at various locations on the two sites (the same rig to be used at both Preston New Road and Roseacre Wood, therefore there is no possibility of cumulative visual issues between the two sites during this phase, and with periods of lay down and with the rig occupying different locations within the site curtilages during different phases of the exploratory works). Furthermore, these effects would be temporary in nature and intermittent during those respective phases over a period of 29 months…

5.27

These intermittent visual effects are consistent with many exploratory mineral developments, especially gas / hydrocarbon development activity that might use drilling rigs or the construction phase of developments where cranes are used. Both examples involve vertical elements which appear as visible but transient features in the landscape.

5.28

The ES concluded that the significant adverse visual effects would arise only on a limited number of very localised receptors. As explained for the indirect Landscape effects, these relate to visual receptors that lie within a 1km radius around the site.”

Friends of the Earth, who were also a main party represented at the inquiry, advanced a case which addressed concerns in relation to both climate change and also impacts on public health arising from the proposed development. In respect of climate change their witness, Professor Anderson, provided evidence in relation to the implications for greenhouse gas emissions arising from the use of shale gas. He also provided an overview of the UK’s carbon commitments in particular in the light of the Paris Agreement. He expressed his concerns in relation to the greenhouse gas emissions which would arise as a consequence of the exploratory works proposed in the development. The calculations produced by Professor Anderson indicated that in his view the project, for the period 2017–2022, represented between 0.007% and 0.01% of the UK’s total carbon budget. Performing the same analysis in relation to the Fylde region, the exploration works would represent, on Professor Anderson’s calculations, between 5% and 9% of the Fylde region’s total emissions budget. Professor Anderson’s overall conclusion was that the development of shale gas was “simply incompatible with the UK’s commitments under even a conservative reading of the Paris Agreement”.

In relation to public health, Friends of the Earth called Dr McCoy. He is a director of an organisation called Medact, which has undertaken research in relation to the health impacts of fracking. Dr McCoy’s evidence examined certain specific areas of risk to public health. He identified public health risk and harm arising from the following sources: noise, odour, intrusive lighting and traffic. He contended that the impacts from these sources would lead to stress, anxiety and sleep loss having deleterious effects upon health and well-being. He further identified harm arising from socio-economic effects of shale gas production; there would again, in his opinion be impacts giving rise to a contribution to heightened levels of anxiety and stress. He provided evidence in respect of exposure to pollutants and hazardous material in particular in terms of air and water-borne hazards. His evidence also examined the impacts on public health which he contended would arise as a consequence of climate change. His evidence as to the potential impacts upon public health led to his conclusion that “the generation of various health-related hazards and risks and a potentially inadequate regulatory system, point to the need to avoid or prevent shale gas exploration”.

Dr McCoy was the co-author of a report published by Medact entitled “Health and Fracking: the impacts and opportunity costs”. This report was alluded to in his evidence and formed part of the materials before the Inspector. Within the report a number of sources of adverse impact on health are identified along with the following three overarching points: firstly, that at present there is incomplete knowledge of the technology in the sense that not all substances associated with fracking have been completely studied or studied at all; secondly, fracking is a relatively new activity and, thirdly, that human exposure to the risks and hazards associated with it will vary from site to site and may be unevenly distributed. The sources of hazard identified were, in brief, air pollution, contamination of ground and surface water, traffic, dust, noise, odour, lighting and social, environmental and economic effects. The report also considered the impact on health of climate change and expressed the concern that shale gas, rather than forming a transition fuel to a low carbon future, could cause a longer period of reliance on fossil fuels and lead to exceedences of UK and international climate objectives. The report expressed concerns in relation to the regulatory system for fracking in the following terms:

“Although a ‘regulatory roadmap' for onshore oil and gas exploration has been published by DECC and provides some detail about best practice related to the licensing, permitting and permissions process for onshore oil and gas exploration, including shale gas, this is not legally binding and does not cover shale gas production.

Technical guidance to clarify which environmental regulations apply to the onshore oil and gas exploration and what operators need to do to comply with those regulations, published by the EA in draft form, is similarly a weak form of regulation.

There are other regulatory gaps and uncertainties. For example, the guidance published by the EA lacks detailed specifications about the mandatory requirements for ‘reduced emission completions' (a term used to describe practices to prevent fugitive methane emissions during well completions and workovers following fracking).

Regulatory processes for the public disclosure of data about fracking fluid and flowback, and their independent verification, are also absent. Detail about the quality, frequency, amount and comprehensiveness of pollutant monitoring is also unclear. We also do not know how flowback will be treated and disposed of; or whether it will be recycled and re-used. Another concern is the proposal that plugged and abandoned wells will be monitored for only one year after abandonment, and that this is to be conducted by the operators themselves.

This relates to another set of concerns about the regulatory system being over-dependent on self-regulation and on a voluntary ‘goal-setting approach' in which operators are assumed to apply best available techniques and good industry practices. The role of independent monitoring or independent verification of operator reports is limited. This includes the requirement for an ‘independent and competent person' to examine the integrity and quality of well design and construction. While described as independent, such a person is often paid for or employed by the operator, and usually conducts the review and examination of well specifications and design as a paper exercise. As such, there is no mandatory and fully independent regulatory oversight of actual construction of wells, and no provision for unannounced and appropriately frequent spot checks, nor for inspections of well integrity to occur across the lifecycle of a well, including after abandonment.

Compounding the over-reliance on self-regulation is a limited sanctions regime in the event of noncompliance with safety standards and best practice…

Finally, there are valid concerns about the capacity of the various regulatory bodies, including local government, which have been weakened by staff and budget cuts and which may lack specialist expertise in shale gas production.”

The overall conclusions of the report were stated as follows:

“The risks and harms associated with fracking in a small area with one or a few boreholes are not comparable to the risks and harms associated with fracking on an industrial scale. The risks and impact of multiple wellpads with up to sixty boreholes need to be modelled and examined. At present, no attempt has been made to assess the health and environmental impact of fracking at an industrial scale in the UK.

Although a growing body of literature indicates that fracking cannot be made entirely safe through any regulatory framework (especially in densely-populated areas), it is possible for risks to minimised and managed. It is important to acknowledge that many industrial activities cause pollution and carry some degree of risk to human and environmental health. A key question is whether the risks associated with fracking can be kept down to a level that is considered acceptable.

At present, the regulatory system for fracking is insufficiently clear, complete or robust. These deficiencies are accentuated by indications that the capacity of regulators are being eroded by budget and staff cuts…

Various medical and scientific organisations and scholars from different countries have formally highlighted the legitimacy of public health concerns whilst calling for more data and better studies on the health effects of fracking. At the same time, several jurisdictions across the world have concluded, on the basis of existing evidence, that the risks and harms associated with fracking outweigh the potential benefits.

France and Bulgaria have banned the process outright. New Brunswick, Canada has also enacted a moratorium on all forms of fracking. New York State in the US recently effectively prohibited shale gas development, citing public health risks as the primary reason. According to Howard Zucker, New York State Health Commissioner, 'the potential risks (to health) are too great, in fact not even fully known, and relying on the limited data at present available would be negligent" On the basis of our existing knowledge, it would be both prudent and responsible to call for, at the very least, a five year moratorium on all activities related to shale gas development, in order to provide the time to:

a.

Learn from more research that will be published in due course

b.

Debate and correct the deficiencies and uncertainties that have been identified in the current regulatory system

c.

Conduct a comprehensive and holistic health impact assessment that accounts for all the potential risks to health, including their cumulative and compound effects on each other; and be tailored to the specific geological, economic, environmental and social characteristics of the areas targeted for fracking; and be based on projected levels of fracking at an industrial scale.”

The developers did not call any evidence directly in response to Professor Anderson’s or Dr McCoy’s proofs of evidence from witnesses with similar expert disciplines, but in the rebuttal proof from Mr Smith a response was provided from other consultants disputing the calculations in relation to greenhouse gas emissions provided by Professor Anderson. Mr Smith placed reliance upon a Ministerial Statement which had been issued by the Secretary of State for Energy and Climate Change to the House of Commons on 16^th September 2015. That Ministerial Statement provided as follows both in respect of the Government’s position on the need to explore shale gas and also, in its annex, in relation to safety and environmental protection:

“My Rt Hon Friend Greg Clark (Secretary of State for Communities and Local Government) and I wish to set out the Government’s view that there is a national need to explore and develop our shale gas and oil resources in a safe, and sustainable and timely way, and the steps it is taking to support this. In laying this statement before Parliament, it formally replaces the Shale Gas and Oil Policy Statement issued by DECC and DCLG on 13 August 2015. This statement to Parliament should be taken into account in planning decisions and plan-making.

The national need to explore our shale gas and oil resources

Exploring and developing our shale gas and oil resources could potentially bring substantial benefits and help meet our objectives for secure energy supplies, economic growth and lower carbon emissions.

Having access to clean, safe and secure supplies of natural gas for years to come is a key requirement if the UK is to successfully transition in the longer term to a low-carbon economy. The Government remains fully committed to the development and deployment of renewable technologies for heat and electricity generation and to driving up energy efficiency, but we need gas - the cleanest of all fossil fuels – to support our climate change target by providing flexibility while we do that and help us to reduce the use of high-carbon coal…

We do not yet know the full scale of the UK’s shale resources nor how much can be extracted technically or economically.

· The British Geological Survey estimates the shale gas resource in the Bowland-Hodder basin under Northern England could be 1300 trillion cubic feet (tcf), compared to current UK annual gas consumption of around 2.5 tcf. The industry need to test how much of this gas in place can be extracted technically and economically.

· National Grid's Future Energy Scenarios (2015) report presents a wide range for potential shale gas production in the UK up to a peak of 32 bcm/year in 2030. This would be around 40% of all the gas we are projected to consume and result in our import dependency falling to 34%, compared to current projections that net imports could reach 75% in 2030.

Shale gas can create a bridge while we develop renewable energy, improve energy efficiency and build new nuclear generating capacity. Studies have shown that the carbon footprint of electricity from UK shale gas would be likely to be significantly less than unabated coal and also lower than imported Liquefied Natural Gas.

The Government therefore considers that there is a clear need to seize the opportunity now to explore and test our shale potential.

Safety and environmental protection will be ensured through responsible development and robust regulation

This must and can be done whilst maintaining the very highest safety and environmental standards, which we have established with a world-leading framework for extracting oil and gas for over 50 years.

Reports by the Royal Society and Royal Academy of Engineering, Public Health England and others have considered a wide range of evidence on hydraulic fracturing in the UK context, and concluded that risks can be managed effectively if the industry follows best practice, enforced through regulation.

The Government is confident we have the right protections in place now to explore shale safely (see Annex). Planning authorities can also have confidence that the regulators will enforce safety, environmental and seismic regulation effectively. But we are not complacent. We will continuously look to strengthen and improve regulation where necessary as the industry develops…

ANNEX

This Annex contains supporting material for the main statement.

Safety and environmental protection

· Our regulatory system is robust and we are proven world leaders, with a 50 year track record, in well-regulated, safe and environmentally sound oil and gas developments. We have strict requirements through environmental permitting and DECC licencing for on-site safety, to prevent water contamination, air pollution and mitigate seismic activity.

· The Health and Safety Executive and the environmental regulators (the Environment Agency in England) are independent and highly specialised regulators. They will enable the development of shale gas in a safe and environmentally sound manner.

· The Environment Agency assesses the potential use of chemicals used in hydraulic fracturing fluids on a case-by-case basis. The use of hazardous chemicals will not be permitted where there is a risk that they may enter groundwater and cause pollution.

· The Health and Safety Executive scrutinise well design and require week by week written updates on drilling progress.

· DECC has implemented a thorough system of rigorous checks before any drilling or fracking and a live traffic light system during the actual operations, to ensure earth tremors will not occur.

To reinforce the existing regulatory regime further, the Infrastructure Act 2015 brought forward a range of additional requirements and safeguards if an operator is to carry out hydraulic fracturing.

· These include taking account of the environmental impact of development, baseline monitoring of methane in groundwater in the 12 months preceding hydraulic fracturing operations, disclosure of all chemicals, community benefits and the exclusion of protected areas.

· Draft regulations, laid on 16 July, defining the protected areas in which fracking will be prohibited as specified areas of groundwater, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage Sites. Fracking can only take place at depths below 1200 metres in these areas.

· Ministers also set out their clear commitment to ensure that hydraulic fracturing cannot be conducted from wells that are drilled at the surface of National Parks and other protected areas. This is not intended to impact on conventional drilling operations.

Transparency and information for the public

Following the Autumn Statement announcement of £5m for 2015-16 to “provide independent evidence directly to the public about the robustness of the existing [shale gas] regulatory regime”, DECC received £1.7m to establish independent environmental monitoring and is working with a research consortium led by the British Geological Survey to expand an existing Lancashire-based programme for gathering baseline environmental data to North Yorkshire, where a planning application for a shale gas project is being submitted. The data produced would be made available to the public.”

Within his rebuttal proof Mr Smith, in addressing Dr McCoy’s evidence, referred to the report of the Royal Society and Royal Academy of Engineers referenced in the written Ministerial Statement.

Following the exchange of proofs of evidence, on 1^st February 2016 an agreed Statement of Common Ground (the “SOCG”) between the developer and the County Council was published. The document was required by rule 14 of the Inquiries Procedure Rules which are set out in greater detail below. The purpose of the SOCG was to set out those matters which were agreed between the developer and the County Council. Section 6 contained the following in relation to the policies which have been set out above:

“6.

PLANNING POLICY CONTEXT

6 1 This section sets out the principal planning policies which the Parties agree should be taken into account in the determination of this appeal…

6.2.2

The Development Plan comprising:

(A)

Joint Lancashire Minerals and Waste Development Framework Core Strategy Development Plan Document, February 2009 ("JLMWLP") (Core Document 48.8);

(B)

Joint Lancashire Site Allocation and Development Management Policies DPCD, September 2013 (Core Document 48.9); and

(C)

Fylde Borough Local Plan, May 2003 (Core Document 48.10)….

6.3

NPPF

6.3.1

The NPPF sets out the Government's overarching planning policies and is a material consideration when determining planning applications. The Parties agree that the following paragraphs of the NPPF are relevant to determination of the appeal:…

(G)

Paragraph 109: Conserving and enhancing the natural environment;…

6.6

Local Development Plan

6.6.1

The Development Plan for the site is made up of the LMWDF, the Joint Lancashire Minerals and Waste Local Plan - Site Allocation and Development Management Policies - Part One and the Fylde Borough Local Plan The following policies were relevant to consideration of the Exploration Application:

6.6.2

Joint Lancashire Minerals and Waste Development Framework Core Strategy Development Plan Document, February 2009

(A)

Policy CS1 • Safeguarding Lancashire's Mineral Resources; and

(B)

Policy CSS: Achieving Sustainable Minerals Production.

6.6.3

Joint Lancashire Site Allocation and Development Management Policies. September 2013

(A)

Policy NPPF1: Presumption in favour of sustainable development; and

(B)

Policy DM2: Development Management 6 6.4 Fylde Borough Local Plan, May 2003”

On 9^th February 2016 the public inquiry in relation to the proposals opened. It continued for 19 days and was closed on 16^th March 2016. For the purposes of these proceedings it is necessary to focus upon events at the inquiry in relation to the relevance of policy EP11. Mr Egan, a representative of the developer, has provided a witness statement in these proceedings in relation to this issue. At paragraph 29 of his witness statement he states as follows:

“29.

It was entirely clear over the course of the Inquiry that Cuadrilla’s case was that policy EP11 was not relevant to the type of planning applications in question before the Inspector. This was evident at various stages of the Inquiry:

i)

Mark Smith’s main proof of evidence as Cuadrilla’s planning expert noted, in the context of EP11 at paragraph 8.24, that the Fylde Local Plan was outdated and did not address the specific issues, or reflect the national need and benefits of hydrocarbon exploration and extraction, as set out in the Written Ministerial Statement of September 2015.

ii)

During Dr Ashley Bowes’s cross-examination of Mark Smith I understand that Dr Bowes, who was appearing on behalf of PNRAG, specifically questioned Mr Smith on Policy EP11. During this cross-examination, Mr Smith reiterated his view that Policy EP11 was not intended for temporary mineral-related development.

iii)

Nathalie Lieven QC cross-examined LCC’s planning witness, Katie Atkinson, on the applicability of Policy EP11. I am aware that she specifically questioned Ms Atkinson on the applicability of EP11 to applications for the exploration of hydrocarbons – particularly ones involving the installation of drilling rigs.

iv)

Our case was also clear to the other main parties at the Inquiry. For instance, LCC’s counsel, Alan Evans, cross-examined Mr Smith regarding the relevance of the policy. He also questioned Ms Atkinson about her views on the applicability of EP11. I believe that Ms Atkinson acknowledged that Mr Smith was making a case for the impossibility of application EP11.

v)

Finally, Cuadrilla’s Closing Statement of 16 March 2016 fully set out our case on the EP11 point. A copy of the Closing Statement was provided to all the parties, and was also uploaded on the Programme Officer’s website. In particular, in paragraph 24, Nathalie Lieven QC highlighted that it would be “simply impossible for a [shale gas] exploration application, given the equipment required, to meet the policies of the Local Plan”. These submissions were recorded in the Inspector’s Report.”

His reference to Mr Smith’s main proof of evidence is to that which has been set out above. So far as the cross-examination of Mr Smith is concerned there is attached to the first claimant’s skeleton argument a transcript of the relevant part of Mr Smith’s cross-examination. The transcript is as follows (AB is Dr Bowes, counsel for the first claimant at the inquiry, and MS is Mr Smith):

In the first claimant’s closing submissions, at paragraph 5, Dr Bowes, on behalf of the first claimant, noted as follows:

“5.

It is also agreed within the Statement of Common Ground (1 February 2016) that the following policies were engaged by the appeal scheme:…

b.

Policy EP11 – Fylde Local Plan…”

A little later within the closing Dr Bowes made the following submissions in relation to landscape impact:

“Issue 1 – Harm to the landscape

19.

By EP11 Fylde Local Plan (2005) new development in the rural area should be “in keeping” with the landscape types identified the Landscape Strategy for Lancashire (CD/15.1). Mr Smith accepted in XX that a conflict with the Strategy must therefore amount to a conflict with the policy EP11…

29.

The proposal therefore, by definition, conflicts with the development plan policies adopted to promote that Strategy. Accordingly, we say there us a clear and inescapable conflict with policies EP11 Fylde Local Plan (2005), DM2 Lancashire Waste and Minerals Plan (2013) and CS5 Lancashire Waste and Minerals Core Strategy (2009)…”

The closing provided by Ms Lieven QC on behalf of the developer also addressed the question of policy EP11. She submitted as follows:

“The Fylde Local Plan

23.

LCC cited policy EP11 in the Local Plan in the Reasons for Refusal at PNR. The Local Plan does not purport to deal with minerals development and has no relevance to this form of development. Fylde is not the MPA, and it is clear from the introduction to the Plan that it did not intend to be applied to mineral development. There may be some forms of waste development, i.e. built development, where it has some relevance, but not to the type of application in consideration here.

24.

The proof of that point lies in the fact that it would be simply impossible for a SG exploration application, given the equipment required, to meet the policies of the Local Plan. The Council appear to accept that in respect of policy SP2, but it is equally obvious in respect of EP11. It is not possible to design a drilling rig in a “vernacular style”, or to assimilate a 36/53m rig into the landscape. It is quite obvious that EP11 is a policy aimed at built development, and not an engineering operation such as SG exploration.

25.

In any event the Fylde Local Plan is also silent in respect of SG exploration, and out of date in respect of Government policy and thus should be given little weight on this ground as well if it is considered to have any relevance.

26.

Therefore any perceived conflict with EP11 should be given minimal if any weight.”

The final version of the programme for the public inquiry which is contained within the papers demonstrates that the first claimant’s closing was delivered on 11^th March 2016 and the closing submissions on behalf of the developer were made on 16^th March 2016.

The Inspector produced her report to the defendant on 4^th July 2016. One of the first issues which the Inspector tackled in her report was the contention by the first claimant, supported by Friends of the Earth, that the ES which was produced with the application was defective on the basis that, given the exploratory and monitoring work at the two sites were part of a larger project to explore the commercial viability of the Boland Shale for extraction of natural gas, a single ES should have been produced for both the Preston New Road and the Roseacre sites. This contention was refuted by both the developer and the County Council, and the Inspector’s conclusion was that there was no substance in the complaints raised by the first claimant and Friends of the Earth. In essence she concluded that given the information provided, and the geographical separation of the sites, it was not obvious that the two sites should be treated as a single project, in particular since they were not interdependent or functionally linked, and either could be taken forward independently of the other. The Inspector was thus satisfied that the requirements of the EIA Regulations were met by the ES which had been produced in respect of each site.

Having set out the provisions of the development plan and national planning policy (including all of the policies which have been set out above) the Inspector noted that the activities comprised in the development proposed engaged other regimes and required other parallel consents and permissions including permits under the Environmental Permitting Regulations 2010. She noted that permits had already been issued in relation to the exploratory works at Preston New Road covering the following topics:

“1.189

These permits cover:

•

A mining waste operation for the management of extractive waste not involving a Mining Waste Facility.

•

In respect of hydraulically fractured wells, a non-hazardous Mining Waste Facility for the accumulation of injected hydraulic fracturing fluid which will remain in the underground target formation and has become waste;

•

An above ground hazardous Mining Waste Facility for the temporary deposit and accumulation of hazardous waste in storage containers as the wells are successively drilled. The hazardous waste will include drill cuttings coated with residual Low Toxicity Oil Based Muds (“LTOBM”).

•

A groundwater activity for the discharge, namely of fracturing fluid into the target formation, that might lead to an indirect input of a pollutant to groundwater.

•

The incineration by flaring of hazardous waste, namely natural gas above 10 tonnes per day, as an activity listed in schedule 1 of the Environmental Permitting (England and Wales) Regulations 2010.”

She also noted that two Radioactive Substances permits had also been issued. Further permits were required in respect of the works which would have to be applied for in due course.

The Inspector proceeded to summarise in her report the case which had been made on behalf of each of the parties who had made representations to the appeal process. No complaint is raised by any of the parties to these proceedings that the Inspector failed to adequately summarise their case. In summarising the cases of the developer and the first claimant the Inspector accurately reflected the developer’s views in relation to the lack of applicability of EP11, and the first claimant’s contention that it was a relevant policy identified as such in the SOCG, and a policy which was breached by the proposed development. The second claimant’s representations to the inquiry were also summarised by the Inspector. His contention was that there “should be an outright ban on fracking, given how toxic the industry is to the air, water and environment”. He raised concerns in relation to the impact of the process of hydraulic fracturing and the risks presented by radioactive waste. He made particular reference to the application of the precautionary principle in opposing the proposals.

Having set out the cases made by the parties, the Inspector set out the conclusions which she had reached in respect of the various issues which were before her. This judgment will focus on those aspects of her conclusions which are contentious in these proceedings. The first aspect of her conclusions which needs to be set out is those in relation to the relevance of the Fylde Borough Local Plan, and in particular policy EP11. Her conclusions in respect of this issue were articulated as follows:

“12.29

... The FBLP does not expressly state that any policy in it may be applied to minerals or waste development. Conversely, there is nothing in it which states that no policies in it should be applied to minerals or waste development. I concur with the stance of LCC that if the FBLP was per se incapable of application to minerals and waste proposals then it would not be possible to read it “in conjunction with” another plan dealing with the same; one would simply read the other plan.

12.30

LCC accepts that if it were correct that it would be impossible for a shale gas proposal to satisfy Policy SP2 because it is not a category of development permitted in countryside areas, then that would demonstrate that that particular policy could not then sensibly be applied. To my mind, that represents an appropriate stance. The Appellants’ position that all policies in the FBLP are irrelevant to shale gas development cannot be supported. Where policies in the FBLP are capable of sensible application to minerals development, then they can reasonably be applied.

12.31

In relation to Policy EP11, the Appellants claim that this is obviously a policy aimed at built development and not an engineering operation such as shale gas exploration. The supporting text stresses the importance of ensuring that any new development pays particular regard not only to the natural landscape but also to the historical and vernacular character of the area so that, as far as possible, it is assimilated into the landscape rather than imposed upon it. The policy, itself, is consistent with the NPPF, para 17, bullet point 5, and its requirement for design to be of a high standard reflects the NPPF approach to requiring good design set out in section 7. LCC accepts that the requirement that, “..building materials should reflect the local vernacular style” could not apply to the proposed development. However, it seems to me that it is not only that aspect of the policy that is obviously inapplicable, but also the main thrust of the policy is aimed at the assimilation of new built development, rather than the type of development that is the subject of these appeals. This is an instance where the most appropriate policy against which to consider the landscape character impact and the design of the proposed development falls within the JLMWLP. Policy EP11 cannot sensibly be applied to these schemes.”

The Inspector then turned her attention to the landscape and visual impact of the appeal proposals. In line with the guidance provided by GLVIA which was, as set out above, the basis for the evidence which had been produced by the landscape architects who gave evidence before her, the Inspector set out her conclusions on this topic (after having dealt with some background matters) firstly, under a number of headings associated with landscape impact, or the effect upon landscape character, and secondly in respect of visual effects, namely the significance of the visual impacts identified, before setting out her overall conclusions on landscape and visual impact.

One of the background matters which she set out before dealing in detail with the substance of the argument between the landscape witnesses was the question of the landscape mitigation which was proposed as part of the scheme. Her observations in relation to mitigation were set out as follows:

“Mitigation

12.70

The proposed on-site landscape and visual mitigation would be in the form of seeded earth bunds to two sides of the perimeter and native planting of whips and transplants to all sides of the perimeter, planted between the outer stock proof boundary fence and noise and security fencing. The Appellant acknowledges that the planting would not achieve its maximum potential during the six year operational life of the development. Nevertheless, it would provide a degree of screening and mitigation benefit in relation to the ground level infrastructure and fencing during the operational life of the scheme. There would also be scope for planning conditions to control the colour of certain items of plant and equipment, the design and location of the perimeter landscaping mounds, the colour and design of fencing, the lighting scheme and the details of the restoration scheme. The proposed mitigation would seem to be reasonable given the development proposed and the nature of the site. However, it would do little to reduce the visual impact of the taller structures associated with the drilling, hydraulic fracturing and flow testing.”

As identified above, the Inspector dealt firstly with landscape impact. Her first conclusion was to note that both Mr Tempany and Mr Maslen, whilst deploying different landscape character areas, had ultimately reached the conclusion that the relevant landscape area which was under consideration was “likely to be valued at local level and has an overall medium sensitivity to change”.

The Inspector then went on to consider the value of the landscape bearing in mind the contention made by Mr Scott-Brown, on behalf of the first claimant, that the landscape concerned was a “valued” landscape for the purposes of paragraph 109 of the Framework. Her conclusions were expressed as follows:

“The value of the landscape

12.81

The appeal site is not within an area formally designated for its natural scenic beauty or landscape qualities. There would be no impact upon any designated landscape to which the NPPF, para 115, requires great weight to be given. Although the site does not fall within an area to which the highest status of protection should be afforded, the NPPF, para 109, also seeks to protect and enhance ‘valued’ landscapes. The Appellant acknowledges that other landscapes can be valued and that it is necessary to consider the nature of the landscape in this case…

12.84

The GLVIA provides some guidance as to how to assess the identification of valued landscapes. It explains that the fact that an area of landscape is not designated either nationally or locally does not mean that it does not have any value. It sets out at Box 5.1 a range of factors that can help in the identification of valued landscapes. Looking at each of those factors in turn, I do not consider this to be an area of landscape that displays features to which a high value can be attributed.

12.85

Nonetheless, the landscape does have some value at local level and the appeal site displays a number of positive characteristics identified by the Lancashire Landscape Strategy. For those reasons, I consider that it is a ‘valued’ landscape in NPPF terms.”

The Inspector then proceeded to examine the effects of the proposals on landscape character. The Inspector’s conclusions, set within the Framework of the GLVIA, were as follows:

“12.88

The GLVIA advises that an assessment of landscape effects should consider how the proposal would affect the elements that make up the landscape, its aesthetic and perceptual aspects, its distinctive character and the key characteristics that contribute to this.

12.89

Turning to the magnitude of landscape effects, the GLVIA, para 5.48, explains that each effect on landscape receptors needs to be assessed in terms of its size or scale, the geographical extent of the area influenced, and its duration and reversibility. As regards the size or scale of the effect, judgements should have regard to the extent of the existing landscape elements that would be lost, the proportion of the total extent that this represents and the contribution of that element to the character of the landscape.

12.90

The appeal site occupies about 1ha which represents an extremely small proportion of the overall ‘Fylde’ landscape character area. In terms of the overall physical landscape character, the proposed development would have a negligible effect. More locally, there would be some impact upon individual components of the landscape. However, only few, relatively commonplace landscape components would be directly affected by the exploratory works, such as a 40m length of existing hedgerow and a limited number of mature hedgerow trees to the Preston New Road frontage and lowering of existing hedgerows for the visibility splay. There are no significant existing landscape features that would be removed. The direct effect would therefore be fairly localised in nature with limited loss of individual components of the landscape.

12.91

The GLVIA also provides that account may be taken of the degree to which aesthetic or perceptual aspects of the landscape are altered either by the removal of existing components of the landscape or by the addition of new ones and whether the effect changes the key characteristics of the landscape which are critical to its distinctive character. The geographical extent over which the landscape effects would be felt must also be considered…

12.95

In reaching a judgement on the overall significance of the effect on the landscape, it is necessary to consider not only the direct effect but also the effect on aesthetic or perceptual aspects that contribute to the character and distinctiveness of the landscape. There can be no doubt that the existing perception of an undulating open agricultural field would be lost for the duration of the works. It is inconceivable that during the drilling, hydraulic fracturing and initial flow testing stage there would be no direct physical change to the local landscape character beyond that already experienced at construction. The addition of new elements, particularly during the first phase with the introduction of the taller structures, would inevitably influence the character of the landscape and how it is perceived. There are structures with a vertical element in the vicinity but the pylons, for example, by virtue of their porous lattice structure and lack of illumination and associated development, are less visually intrusive than the proposed development. I consider that the combined effect of the changes would result in a significant impact on the immediate landscape that would be perceived from a wider area of about 1km.

12.96

The Appellant points out that within that 1km radius, the M55 lies to the north and to the south of the site lies the A583. These are factors which must inevitably serve to physically constrain the landscape impact to some extent. PNRAG draws attention to that part of the Lancashire Landscape Strategy which seeks to enhance landscapes associated with major infrastructure developments such as the M6 and M55 corridors. To achieve this, it recommends improving drainage and to consider tree planting in areas where it can integrate new development. Thus, as Mr Tempany accepted, these are seen as harmful infrastructure developments which should be mitigated. To my mind, they clearly do not provide justification for other development harmful to the landscape to take place.”

Having set out her conclusion that she was satisfied that lighting could be suitably controlled, and would therefore give rise to very limited additional impact on the landscape, the Inspector then turned in her analysis, again within the framework of the guidance set out in the GLVIA, to the duration of the landscape effects to be taken into account. Her conclusions were as follows:

“The duration of the landscape effects

12.99

As regards the duration of the landscape effects, the GLVIA advises that this can usually be judged on a scale such as short-term, medium-term or long-term where, for example, short-term might be zero to five years, medium-term five to ten years and long-term ten to twenty five years. These words are subject to the caveat that “there is no fixed rule on these definitions and so in each case it must be made clear how the categories are defined and the reasons for this.” The duration of the development as a whole would extend slightly beyond what GLVIA suggests might reasonably be regarded as short-term. However, as indicated above, the first phase would be completed much sooner.

12.100

LCC draws support from the PPGM, para 98, in seeking to make the point that the development should not be regarded as short-term in nature. The guidance in PPGM was written specifically with reference to drilling for hydrocarbons. It distinguishes between the typical periods for exploratory drilling for conventional and unconventional hydrocarbons and describes the former as being a “short-term but intensive, activity” and comments that exploratory drilling for the latter “may take considerably longer”. However, it does not specifically define what should be regarded as short-term in visual impact assessment terms and it seems to me that that was not the purpose of that part of the guidance which should not be taken out of context. For that reason, I find the GLVIA to be more helpful in this particular respect.

12.101

Whilst I have had regard to the landscape and visual effects that would be experienced over the entire duration of the permission sought, as indicated above, there are good reasons to justify distinguishing between the different phases of the development. In my view, the adverse landscape effects of greatest significance would be experienced during the first phase of the development and this would be a short-term impact. Furthermore, the particular effects associated with the proposed development would ultimately be reversed at the end of the temporary six year period. Any localised changes to landscape components, such as the removal of hedgerows, would be fully remediated through the reinstatement of hedgerows and replacement hedgerow trees.

12.102

PNRAG has raised particular issues in relation to the proposed siting of the development. For example, Mr Scott-Brown suggests that it would be positioned closer than necessary to existing built development. However, in terms of the particular qualities of the site, itself, within this landscape character area, he could not point to a better site in the vicinity in landscape impact terms. Whilst there might be scope for positioning the developed area further away from the properties fronting Preston New Road, this would bring it closer to other nearby properties. I do not find there to be merit in PNRAG’s criticism of the proposed siting of the developed area. Furthermore, it is difficult to see how the proposed works, whether monitoring or exploration, would affect any sense of separation between settlements by virtue of their contained nature and distance from villages such as Great Plumpton and Little Plumpton.”

The Inspector then turned away from the consideration of impacts on landscape character to consider the visual effects of the scheme. She addressed a number of disputes between Mr Tempany and Mr Maslen in relation to the findings of the appellant’s Landscape and Visual Impact Assessment which accompanied the application, none of which require rehearsing here. Her conclusions in relation to visual impact were set out in the following terms:

“The visual impact

12.117

The Appellant’s position is that in terms of individual impact on residential receptors these would be both limited in number and located where any adverse views of the site are themselves limited. It accepts that the residential receptors along Moss House Lane at Plumpton Hall Farm, and along Preston New Road, would experience significant adverse effects. The significant effects would only occur during the construction, drilling, fracturing and initial flow testing phases. The visual effects of the drilling rig would be experienced intermittently for around 29 months out of the overall 6 year exploration phase.

12.118

As indicated above, Mr Maslen considers that potentially significant effects might arise for around 11 residential receptors at the drilling, hydraulic fracturing and initial flow testing phases. This is a greater number of residential receptors than has been identified by the Appellant. Having visited the site, and given consideration to this matter, I believe that these other residential properties that he mentions would also be likely to experience a substantial deterioration in their existing view which would be significant. However, even on the basis of around 11 residential receptors being affected in this way, the total number of residential receptors that would experience a significant visual impact remains low. The proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live.

12.119

Mr Maslen states that he would expect similar effects to arise from the subsequent extended flow testing phase for sensitive receptors. He submits that whilst the drilling rig would no longer be in place, associated fencing, infrastructure and ancillary equipment would remain as an incongruous, industrial element in otherwise rural views until any eventual restoration was undertaken.

12.120

I consider that there is a clear distinction to be made between the visual impact associated with the drilling, hydraulic fracturing and initial flow testing phases and the extended flow testing phase. During the latter phase the prominent vertical feature of the rigs would no longer be present. Although the Appellant acknowledges that there would occasionally be a service rig on the site at times during later stages this would be an infrequent and short-lived occurrence. I do not believe that the magnitude of change during this later phase would be such that the adverse effect would be significant. In my judgement, the significant effects would only arise during the earlier phases and would therefore be limited in their duration and would not be experienced throughout the temporary six year period.

12.121

There is also the matter of the impact upon users of the roads close to the site. Mr Maslen identified moderate adverse (but not significant) effects for receptors to two roads and the Moss House Lane fishing pond. The latter was also regarded by the Ryder Report as having a high sensitivity compared to the Appellant’s assessment of medium sensitivity. The rural qualities of Plumpton Lane and Moss House Lane were clearly apparent when I visited the site. I agree that they are likely to have local value as walking or cycling routes. Furthermore, I agree with Mr Maslen’s assessment of a ‘Moderate Adverse’ effect for sections of these roads during the drilling, hydraulic fracturing and flow testing phases.”

The Inspector then turned to consider the question of visual impact within the transport corridors of the M55, the A583 Preston New Road and Moss House Lane. Her conclusions in respect of that issue were set out as follows:

“12.125

Although I recognise that these transport corridors should be attributed a greater sensitivity given their role in providing access to the Fylde Coast and Blackpool, I do not consider that more than a medium sensitivity should be attributed to them. Given the likely extent of deterioration of those views, I do not regard the overall impact upon them as being significant. There is no substantial evidence to support the suggestion that the fact that these views would be obtained by people going to and from Blackpool would materially detract from the overall attractiveness of the area as a tourist location. In my judgement, it is highly unlikely that that would be the outcome, particularly given the duration of the impact.”

Against the background of these findings, the Inspector moved on to consider her overall conclusions in relation to landscape and visual impact in respect of the appeal proposals. She set out her conclusions as follows:

“Overall Conclusions – Landscape and Visual Impact PNREW

12.149

I conclude that the development would not require the removal of any significant existing landscape features and any landscape change would not be of a permanent nature. However, having regard to aesthetic and perceptual considerations, there would be a significant impact upon the landscape during the first phase of the development that would last about two and a half years. These significant landscape effects would be limited to a distance of up to around 1km from the site. There would be no material indirect adverse landscape effects on any neighbouring local landscape character areas.

12.150

The significant impact on the landscape would be short-term during the first phase of the development, although there would be some varying degree of impact for the duration of the temporary permission. This would be wholly reversible and the site would be fully restored after 75 months. The mitigation proposed is reasonable and would represent a positive contribution, as far as can be achieved, to the appearance of the site. The restoration proposals would reinstate the localised landscape characteristics, such that there would be no lasting change to landscape character.

12.151

Policy DM2 supports development that makes a positive contribution to matters such as landscape character, “where appropriate”. It also indicates that this might be achieved through the quality of design, layout, form, scale and appearance of buildings and restoration within agreed limits, to a beneficial after use and the management of landscaping and tree planting. Given the nature of the development, there are obvious limitations on what can be achieved in terms of design, layout and appearance.

12.152

Nevertheless, having regard to the limited direct landscape impacts, and the proposed mitigation, I consider that the scheme incorporates measures that would at least serve to conserve and protect Lancashire’s Landscape Character. The impacts on positive landscape features would not be lasting changes. The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with Policy CS5. Although there are landscape impacts that would cause demonstrable harm which cannot be eliminated, I am satisfied that they have been reduced to an acceptable level. The development would therefore be in accordance with Policy DM2.

12.153

PNRAG submits that the siting of the development would not be in keeping with the distinct landscape character types identified in the landscape strategy for Lancashire and it is therefore in conflict with Policy EP11. However, it is hard to envisage any shale gas development that could be sited without a degree of conflict with that strategy. As indicated above, I do not consider that this policy can be sensibly applied to these schemes.

12.154

Although there would be an adverse impact upon a ‘valued’ landscape, this particular landscape is valued only at local level and does not have the highest status of protection. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.

12.155

Whilst there would be some significant adverse visual effects, only a low number of residential receptors would experience effects of that magnitude. These significant effects would only arise during the drilling, fracturing and initial flow testing phase over a period of some 29 months. The mitigation proposed is reasonable and the limitations in what can be achieved in that respect are acknowledged. There would be additional adverse visual impacts, including upon users of transport corridors over and above what has been identified by the LVIA. However, these would not amount to significant impacts. There would be little scope for any cumulative visual issues between the Preston New Road and Roseacre Wood during this phase, or with any other developments within the area.

12.156

Policy DM2 supports minerals development where it can be demonstrated that the proposals would, where appropriate, make a positive contribution to the residential amenity of those living nearby. There are examples set out showing how this might be achieved. In terms of siting of the development, PNRAG’s witness could not point to a better location for the developed part of the site. The development would be sited in a location where only a relatively small number of residential properties would experience a significant adverse impact. The reduction in height of the drill rig to 36m would serve to keep the development as low as practicable to minimise visual intrusion. A lighting scheme would be in place and other mitigation is proposed including the colour of the fencing and other structures. It seems to me that all appropriate measures to mitigate the impact on visual amenity have been included within the scheme. There would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that there would not be conflict with Policy DM2.

12.157

Based on the evidence given above in relation to the reasons for refusal pertaining to both landscape and visual issues, and my inspections of the site and surroundings, I conclude that the development at Preston New Road would not ‘cause an unacceptable adverse impact on the landscape’ nor would it ‘result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents’. The landscape and visual impacts associated with the scheme would not be unacceptable.”

The Inspector also addressed the considerations raised by Friends of the Earth in its evidence and formed conclusions in relation to its objections and the evidence which supported them. Although it is not directly in point in the cases before the court, in my view it is helpful as part of the context for the Inspector’s consideration of the matters which are directly before the court as part of the second claimant’s case to set out a little of the Inspector’s conclusions on the case made by Friends of the Earth in respect of the arrangements for the production and treatment of waste fluid from the hydraulic fracturing process. In order to address these issues the Inspector analysed the relationship between the planning decision-taking process and any other regulatory regimes which might be engaged by a development project. Those considerations were directly in issue in respect of the production and treatment of flowback material. Her analysis is set out in the following terms:

“12.590

The Appellant’s position is that where there is another regulatory regime that deals with a matter then the planning decision-taker should rely on that regime and assume that it will operate appropriately. They submit that this is highly relevant to concerns raised in the evidence about environmental pollution, flowback material and impact on health. These matters have been dealt with in great detail through the environmental permitting regime, and would be subject to intensive monitoring and regulation as part of that regime, if and when the proposals are implemented. There is no basis for the Secretary of State to go behind those regimes, and do anything other than assume that they would operate effectively.

12.591

The case of R (Frack Free Balcombe Residents Association) v West Sussex County Council is relevant in describing the role and weight to be afforded to other regulatory regimes in the planning decision process. Mr Justice Gilbart concluded that: “In my judgment there is ample authority to the effect that the Planning Authority may in the exercise of its discretion consider that matters of regulatory control could be left to the statutory regulatory authorities to consider. There was ample material before it that all matters of concern could be and would be addressed…”. He continues: “…the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant’s members have about the effects on the environment. The Claimant and its members’ concerns are in truth not with the planning committee’s approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee.”

12.592

Whilst PPGM makes it clear that on-site storage and the traffic impact of the movement of water are relevant planning issues, there is disagreement between the parties as to whether the impact of development on available capacity is a matter for the planning decision-taker. PPGW, para 049, and PPGM, para 112, are relevant to the consideration of this matter. FoE submits that whilst the decision-maker should assume that the waste disposal regime will operate effectively, this does not give rise to an irrebuttable presumption.

12.593

Such an approach would, indeed, be consistent with the Frack Free Balcombe case. Mr Justice Gilbart did not, in that case, say that there is an irrebuttable presumption that matters which are addressed to any extent by a regulator cannot be taken into account by the planning decision-maker.”

Ultimately, the Inspector concluded, having analysed the evidence on this issue, that all of the impacts associated with the production of flowback fluid would be reduced to an acceptable level and accord with both policy DM2 and relevant national policy.

The Inspector then went on to consider the case which had been made by Friends of the Earth in respect of public health and public concern. She noted that in the report to committee, the County Council’s officers had referred to Public Health England’s review into the potential health impacts of shale gas extraction, published in June 2014, which had concluded that “the potential risks to public health from exposure to emissions associated with shale gas extraction will be low if the operations are properly run and regulated”. She further noted that there was no outstanding objection raised by Public Health England to the proposed development on public health impact grounds. Having reviewed the evidence which she had already set out earlier in her report (including the evidence of the second claimant and that of Dr McCoy), the Inspector reached her conclusions with respect to public health and public concern in the following terms:

“12.655

As regards the hazards associated with potential exposure to air and water pollutants, the Appellants point out that such matters would be strictly controlled by the EA through the permitting system. This would ensure that no levels which could have an impact on human health would be reached. The Annex to the WMS provides support for that position. In the light of para 122 of the NPPF, and the Frack Free Balcombe case, I am content that it could be assumed that the regulatory system would operate effectively to control such emissions. There would be no health impacts resulting from these matters.

12.656

Although Dr McCoy referred to the potential health and wellbeing impacts of matters such as noise, smells, intrusive lighting and traffic. He deferred to the evidence of experts on those topics to the Inquiry. He identified noise and other nuisances as being the most likely causes of negative direct impacts on human health. I have given consideration to noise, visual amenity, and other potential impacts upon health and wellbeing elsewhere in this report. I do not believe that there would be additional negative health and wellbeing impacts on nearby communities associated with the matters raised by Dr McCoy.

12.657

FoE submits that the potential adverse impacts associated with the matters outlined above would be exacerbated by the anxieties arising from the public perception of risk related to these developments. It points to there being a significant degree of uncertainty in the scientific literature about the potential health effects of fracking and the lack of trust in the oil and gas industry generally and Cuadrilla in particular. Dr McCoy also pointed out the feelings of anger and helplessness caused by the view that shale gas at production would be forced onto local communities by national Government policy.

12.658

The Appellants acknowledge that local residents and wider members of the public are concerned and worried about the development for a variety of reasons. They point out that many of the fears are based on, or reinforced by, information which has been disseminated from reports of US experiences. These sites would be closely monitored and the ES would check and control emissions. Whatever the US experience, the regulatory regime in the UK is different. There has been much criticism of the capabilities of the UK regulatory regime by Interested Persons during the course of the Inquiry. However, their evidence does not lead me to find that the regulatory regime could not be relied upon to operate effectively in these cases.

12.659

The Appellants accept that public concern is capable of being a material planning consideration and refer to the case of West Midlands Probation Committee v SSE and Walsall MBC. However in this instance, the processes would be regulated and all pathways that could potentially impact upon human health would be monitored and appropriately controlled. Given these factors, I agree with the Appellants that little weight should be given to these concerns. I do not consider the expressed fear and anxiety can be regarded as being reasonably engendered or a justifiable emotional response to the projects in the light of the level of monitoring and controls that would be imposed upon the proposed activities.

12.660

On socio-economic effects, Dr McCoy asserts that a number of potential impacts might arise through commercial shale gas production at scale. The same applies to his comments on climate change and health. He makes clear that his climate change concerns are much broader in scope than the communities and environment in the immediate vicinity of the sites and the surrounding areas of Lancashire.

12.661

These appeals do, of course, relate to shale gas exploration rather than commercial shale gas production at scale. The health impacts associated with these exploratory works appeals should be distinguished from those which might be associated with production at scale. The available evidence does not support the view that there would be profound socio-economic impacts or the climate change impacts on health envisaged by Dr McCoy associated with these exploratory works.

12.662

I am satisfied that the Appellants have demonstrated, by the provision of appropriate information, that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level. The proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy.”

The Inspector went on to consider the contentions raised by Professor Anderson. Her assessment of Professor Anderson’s evidence and the conclusions which she reached in respect of the three principle points which he raised were expressed as follows:

“12.674

For FoE, Professor Anderson puts forward three headline conclusions. First, he submits that under the UK existing carbon budget, gas can only have a marginal and rapidly declining role in generating electricity post-2030. Secondly, he contends that taking the Preston New Road and Roseacre Wood exploration works together as one “project”, the emissions from the proposals as a stand-alone and non-productive project would be very high and, thirdly, he asserts that if the UK is to abide by the explicit commitment of the Paris Agreement, then there is no viable emission space within the UK’s carbon budget for shale gas to fulfil even a transitional role. …

12.676

On the first and third headline conclusions raised by Professor Anderson, the Appellants draw support from current national policy and the WMS. They state that this makes clear the Government’s position on the need for shale gas extraction as part of its policy response to climate change and the Government’s legal and international obligations. The Government supports the exploration for and extraction of shale gas as part of the UK’s response to climate change.

12.677

I have already given consideration to the weight to be attached to the WMS in the light of the Paris Agreement and the Chancellor’s announcement in relation to CCS. As indicated above, I consider that the way in which the Government chooses to respond and adapt its various energy policies in the light of these two events is a matter it would need to consider and, if thought to be necessary, addressed through policy development. At present, the WMS represents the Government’s position in relation to the need for shale gas exploration and the need for gas to support its climate change target. I agree with the Appellants that the issues raised by Professor Anderson as to how shale gas relates to the obligations such as those set out in the Paris Agreement, and the Intergovernmental Panel on Climate Change (IPCC) carbon budgets, are a matter for future national policy and not for these appeals.

12.678

On the second headline conclusion, Professor Anderson states that the proposal is not a stand-alone project but instead is an important and provisional phase of the UK’s fledgling shale has industry. He submits that the emissions caused by commercial shale gas production, and the timing of full UK shale gas production are such that shale gas could have no appreciable role in the UK’s energy mix. He contends that the development of a UK shale gas industry would be incompatible with its climate change commitments. However, it again seems to me that those are matters for future consideration by the Government in its development of energy policy. For the purposes of these appeals, the analysis should be limited to a consideration of the project emissions during construction, operation and decommissioning, together with cumulative impacts as assessed by the ESs within the framework set by national and local policies…

12.682

It seems to me that in terms of both the Lancashire Climate Change Strategy annual emissions and the overall UK emissions, the projects’ would represent a very small percentage of the total emissions. That would remain the case even if the requirements of the Paris Agreement were to be taken into account. In the light of the support provided by the national policy for shale gas exploration, I believe that those emissions would be entirely reasonable and fully justified. The ES assessment for each exploration site concludes that the project’s potential contribution to national GHG emissions would be negligible. In the light of the ES assessment, I do not consider that the proposed development would have any significant impact upon the national planning policy objectives relating to climate change.”

This led the Inspector to the following ultimate conclusion in respect of the concerns raised to the development on the grounds of climate change:

“12.686

I conclude that the projects would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. I do not consider that para 93 NPPF should be read in isolation, or applied out of context. Taking an overall view of national policy, there can be no doubt that shale gas is seen as being compatible with the aim to reduce GHG by assisting in the transition process over the longer term to a low carbon economy. I am satisfied that the Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that could cause demonstrable harm would be reduced to an acceptable level and that the projects represent a positive contribution towards the reduction of carbon. The proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy.”

Having set out her reasoning in relation to the topics that are pertinent to the claimant’s contentions in these proceedings, the Inspector then drew the threads together in respect of these, and all of the other material considerations which had been raised before her, so as to set out some overall conclusions in respect of the appeal in relation to the exploratory works at Preston New Road. In so far as they are germane to these proceedings, her overall conclusions were as follows:

“Appeals A, B, C and D

12.786

The starting point is s38(6) of the Planning and Compulsory Purchase Act 2004 and s70(2) of the Town and Country Planning Act 1990. The decisions should be made in accordance with the Development Plan unless material considerations indicate otherwise.

12.787

The Development Plan includes the policies of the CS, the JLMWLP and the saved policies of the FBLP. Where policies in the FBLP are capable of sensible application to minerals development, they can reasonably be applied. The Development Plan is not absent, silent or out-of-date. The presumption set out in para 14 NPPF to grant planning permission in those circumstances does not therefore apply.

12.788

The NPPF explains that the policies in paras 18 to 219 of that document, taken as a whole, constitute the Government’s view of what sustainable development in England means for the planning system. The NPPF provides strong support for facilitating the sustainable use of minerals.

12.789

PPGM, para 91, refers to the “pressing need to establish – through exploratory drilling – whether or not there are sufficient recoverable quantities of unconventional hydrocarbons such as shale gas and coalbed methane.”

12.790

The WMS sets out the Government’s view that there is a national need to explore and develop shale gas and oil resources in a safe, and sustainable and timely way, and the steps that it is taking to support this need. The WMS should be taken into account in planning decisions and national policy recognises the need for shale gas exploration. That need is a material consideration of great weight in these appeals. However, there is no such Government support for shale gas development if that would be unsafe and unsustainable.

Appeal A – Preston New Road Exploratory Works (PNREW)

Landscape

12.791

The significant landscape impacts would be limited to a distance of up to around 1km from the site. They would be short-term during the first phase of the development, although there would be some varying degree of impact for the duration of the temporary permission. This would be wholly reversible and the site would be fully restored after 75 months. The mitigation proposed is reasonable and would represent a positive contribution, as far as can be achieved, to the appearance of the site.

12.792

Although there would be an adverse impact upon a ‘valued’ landscape, this particular landscape is valued only at local level and does not have the highest status of protection. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.

12.793

The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with CS Policy CS5. Although there are landscape impacts that would cause demonstrable harm which could not be eliminated, they would be reduced to an acceptable level. The development would therefore be in accordance with JLMWLP Policy DM2. FBLP Policy EP11 cannot sensibly be applied to this scheme. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.

Visual Impact

12.794

There would be some significant adverse visual effects but only a low number of residential receptors would experience effects of that magnitude. These significant effects would only arise during the drilling, fracturing and initial flow testing phase over a period of some 29 months. The proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live. The mitigation proposed is reasonable and the limitations in what could be achieved in that respect are acknowledged. There would be additional adverse visual impacts, including upon users of transport corridors over and above that which has been identified by the LVIA. However, these would not amount to significant impacts. There would be little scope for any cumulative visual issues between the Preston New Road and the Roseacre Wood sites during this phase, or with any other developments within the area.

12.795

All appropriate measures to mitigate the impact on visual amenity have been included within the scheme. There would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that the scheme would be in accordance with JLMWLP Policy DM2.

12.796

The proposed development would not ‘cause an unacceptable adverse impact on the landscape’ nor would it ‘result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents’. The landscape and visual impacts associated with the scheme would not be unacceptable…

Public health and public concern

12.805

The hazards associated with potential exposure to air and water pollutants would be strictly controlled by the EA through the permitting system. This would ensure that no levels which could have an impact on human health would be reached. In the light of para 122 of the NPPF, and the Frack Free Balcombe case, it can be assumed that the regulatory system would operate effectively to control such emissions. There would be no material adverse health impacts resulting from these matters…

12.808

The Appellants have demonstrated, by the provision of appropriate information, that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level. The proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy.

Climate Change

12.809

The project would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. Taking an overall view of national policy, there can be no doubt that shale gas is seen as being compatible with the aim to reduce GHG by assisting in the transition process over the longer term to a low carbon economy. The Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm would be reduced to an acceptable level and that the projects would represent a positive contribution towards the reduction of carbon. The proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy…

Overall Conclusion – Appeal A

12.821

Although the exploration works would be temporary, it must be recognised that they would extend over a number of years. In assessing the effects of the scheme upon local residents, the duration of any impacts that they would experience has been borne in mind. Whilst there would be landscape and visual impacts that would cause demonstrable harm which could not be eliminated, they would be reduced to an acceptable level. The same applies to light pollution. As regards noise, the imposition of the 39 dB night-time limit would not entirely eliminate all adverse effects but it would reduce them to an acceptable level. No significant adverse noise impact would result. Safe and suitable access to the site could be achieved. The various other potential impacts of the proposed development have also been considered including cumulative impacts and I am satisfied they would be reduced to an acceptable level.

12.822

Since it has been demonstrated to my satisfaction, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm could be eliminated or reduced to acceptable levels the development would be in accordance with JLMWLP Policy DM2. The proposed development could be controlled in the manner sought by CS Policy CS5. The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with that policy.

12.823

Subject to the imposition of appropriate planning conditions, the development would also be in accordance with CS Policies CS1, and C5 and objectives together with FBLP Policies EP12, EP15, EP16, EP17, EP23, EP24, EP26, EP27 and EP28. Although there would be compliance with those relevant policies of the FBLP, there would be apparent conflict with Policies SP2 and EP11. However, those are policies which could not sensibly be applied to this form of minerals development. I am satisfied that the proposal would be in accordance with the Development Plan taken as a whole. It should therefore be permitted unless material considerations indicate otherwise.

12.824

Turning to national policy, the NPPF explains that there are three dimensions to sustainable development: economic, social and environmental. Having assessed the development against the policies set out in paras 18 to 219 of the NPPF I consider that it represents sustainable development. Given that the development would be safe and sustainable, it would have the support of the WMS. The national need for shale gas exploration is a factor of great weight in support of this appeal.

12.825

There have been very many objections raised to the proposed development by a large number of people. Whilst I have given careful consideration to the objections raised, I am satisfied that the matters of concern could be satisfactorily controlled by planning conditions or by other regulatory regimes. As such, they can only be attributed little weight in the planning balance.

12.826

Some of the issues raised have related to what might occur should shale gas production at scale take place over the wider area of the Fylde. The appeal proposal does, of course, only seek a temporary planning permission for exploratory works. In the light of PPGM, para 120, this appeal should be considered on its own merits and account should not be taken of hypothetical future activities. Any future proposal for production would require a further application and assessment. Likewise, little weight is attributed to the wider economic benefits that might be derived from shale gas production on a large scale.

12.827

Having regard to the mitigation that could be secured by planning condition, the degree of interference with the rights of individuals in this case would be necessary in the public interest and proportionate.

12.828

I conclude that there are no other material considerations that indicate other than that the development the subject of Appeal A should be permitted in accordance with the Development Plan, subject to the imposition of appropriate planning conditions. I consider that Appeal A should be allowed and planning permission granted subject to planning conditions.”

Against the backdrop of these conclusions, the Inspector’s recommendation to the defendant was that the appeal should be allowed and planning permission granted. For completeness, the Inspector also recommended that the Preston New Road monitoring works application should be approved, the Roseacre exploration works be refused and the Roseacre monitoring works be approved with revised conditions from those imposed by the County Council.

Having received the Inspector’s report on 13^th July 2016 the defendant afforded the opportunity to the main parties to comment on the Committee on Climate Change’s (the “CCC”) report “Onshore Petroleum: the compatibility of UK onshore petroleum with meeting the UK’s carbon budgets” and the Government’s Response to the CCC’s report. Both of these documents were published on 7^th July 2016 and therefore were not available to the Inspector and had not formed any part of the debate at the public inquiry.

The purpose of the CCC’s report was to provide advice on the impact of UK production of onshore petroleum on meeting carbon budgets and the 2015 target of reducing emissions by at least 80% as against 1990 levels. It suffices, for present purposes, to set out the substance of the conclusions and recommendations that the CCC reached. They were as follows:

“Should an onshore petroleum industry be established in the UK and grow quickly, this would have the potential for significant impact on UK emissions. In order to ensure that these are manageable within carbon budgets, it is necessary that increased UK production does not feed through into increased unabated consumption of fossil energy; that emissions associated with production are strictly limited; and that the production emissions that do occur are offset by actions to reduce emissions elsewhere in the economy in order to stay within overall carbon budgets.

Our assessment is therefore that onshore petroleum extraction on a significant scale is not compatible with UK climate targets unless three tests are met:

• Test 1: Well development, production and decommissioning emissions must be strictly limited. Emissions must be tightly regulated and closely monitored in order to ensure rapid action to address leaks.

- A range of technologies and techniques to limit methane emissions should be required, including ‘reduced emissions completions’ (also known as ‘green completions’) and liquid unloading mitigation technologies (e.g. plunger lift systems) should these be needed;

- A monitoring regime that catches potentially significant methane leaks early is essential in order to limit the impact of ‘super-emitters’;

- Production should not be allowed in areas where it would entail significant CO2 emissions resulting from the change in land use (e.g. areas with deep peat soils);

- The regulatory regime must require proper decommissioning of wells at the end of their lives. It must also ensure that the liability for emissions at this stage rests with the producer.

• Test 2: Consumption – gas consumption must remain in line with carbon budgets requirements. UK unabated fossil energy consumption must be reduced over time within levels we have previously advised to be consistent with the carbon budgets. This means that UK shale gas production must displace imported gas rather than increasing domestic consumption.

• Test 3: Accommodating shale gas production emissions within carbon budgets. Additional production emissions from shale gas wells will need to be offset through reductions elsewhere in the UK economy, such that overall effort to reduce emissions is sufficient to meet carbon budgets.”

The Government’s response was, in essence, to accept the three tests set out by the CCC and, for reasons given in their response, to contend that all of the three tests set by the CCC would be met were shale gas development at scale to be pursued. The Government expressed its confidence that in relation to the first test, the existing regulatory regime would ensure “that wells are safely and appropriately designed, operated and decommissioned during development, production and decommissioning”. The Government further concluded that life cycle emissions from UK shale gas would be comparable to conventional sources of gas, thus meeting the second test set by the CCC. Finally, in relation to the third test, the Government observed that given its commitment to meeting carbon budgets any additional emissions from shale gas production would have to be accommodated within carbon budgets and offset by lower emissions in other sectors.

In response to the defendant’s invitation to comment, the developers responded on 22^nd July 2016, contending that the CCC’s report and the Government’s response were wholly supportive of exploration, and arguing that in the light of this new material there was no possible argument against the proposed developed based upon climate change. By contrast, Friends of the Earth produced further submissions, including further evidence from Professor Anderson, which argued that the CCC’s report supported their submission that the development should be refused on climate change grounds alone, a submission which they contended the Government’s response did not answer or diminish. A further response dated 4^th August 2016 was furnished by the developers disputing the Friends of the Earth submissions. A final observation was provided by Friends of the Earth on 15^th August 2016. In those submissions Friends of the Earth refuted the submission made by the developers that they were seeking to challenge Government policy, and drew attention to passages in the evidence which supported their submission. They also provided further commentary on the CCC’s view.

It is clear from the defendant’s decision that these and other post-inquiry representations were taken into account by him before reaching his conclusions. This additional post-inquiry documentation included an updated report from Medact entitled “Shale Gas Production in England: an updated public health assessment”. This updated report was based upon Medact’s continued monitoring of the literature on shale gas production. The conclusions and recommendations of the report remained as previously, namely that the UK should abandon its policy to encourage shale gas production.

Having set out procedural issues, the defendant proceeded to address, firstly, matters which were in common in relation to all of the appeals, dealing at the outset with the approach to the development plan. In respect of the issue as to whether or not EP11 of the Fylde Borough Local Plan was a relevant policy he reached the following conclusion:

“26.

The Secretary of State has considered the relevance of the Fylde Borough Local Plan. For the reasons given at IR12.15-12.31, he agrees with the Inspector at IR12.30 that where policies in the FBLP are capable of sensible application to minerals development, then they can reasonably be applied. He further agrees at IR12.31 that Policy EP11 cannot sensibly be applied to these schemes.”

The defendant then went on to consider what weight could be attached to the written Ministerial Statement. This was another issue which was pertinent to all of the appeals which were under consideration. The defendant expressed his conclusions in relation to the weight to be attached to the written Ministerial Statement in the following terms:

“Need – national policy and the Written Ministerial Statement (WMS) – Appeals A, B, C and D

28.

The Secretary of State has considered the weight that should be attached to the need for shale gas exploration and the WMS. For the reasons given at IR 12.34-12.52, he agrees with the Inspector at IR12.50 that the factors identified by Friends of the Earth do not undermine or materially reduce the weight to be attributed to the WMS. He further agrees that the need for shale gas exploration is a material consideration of great weight in these appeals, but that there is no such Government support for shale gas development that would be unsafe and unsustainable (IR12.52). The Secretary of State also considers that the need for shale gas exploration set out in the WMS reflects, among other things, one of the Government’s objectives in the WMS, in that it could help achieve secure energy supplies.

29.

How the Government may choose to adapt its energy policies is a matter for possible future consideration. If thought necessary, this could be addressed through future national policy. These are not matters that fall to be considered in these appeals.”

Next the defendant considered the adequacy of the ES in relation to the appeal. The conclusions reached were that the ES that had been provided met the requirements of the EIA Regulations and was legally satisfactory.

The defendant then proceeded to consider matters which applied, in particular, to the appeals concerned with the exploratory works. Questions in relation to public health and public concern and climate change were raised in respect of both the Preston New Road and the Roseacre appeals. The conclusions reached by the defendant in respect of those aspects of the case were as follows:

“Public health and public concern

34.

The Secretary of State has considered carefully the evidence and the representations that were put forward in respect of public health and public concern (IR12.636-12.662). He agrees with the Inspector for the reasons given at IR12.655 and IR12.658 that it could be assumed that the regulatory regime system would operate effectively to control emissions and agrees that there would be no health impacts arising from potential exposure to air and water pollutants. He has considered the potential health impacts of public concern. He agrees with the Inspector at IR12.659 that the processes would be regulated and all pathways that could potentially impact upon human health would be monitored and appropriately controlled, and therefore considers these concerns carry little weight in the planning balance. He agrees with the Inspector at IR12.661 that the available evidence does not support the view that there would be profound socio-economic impacts or climate change impacts on health associated with these exploratory works. He notes that there is no outstanding objection raised by Public Health England to the proposed development on public health impact grounds (IR12.644). Overall he agrees with the Inspector that the Appellants have demonstrated by the provision of appropriate information that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level, and further agrees that the proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy (IR12.662).

Climate change

35.

The Secretary of State has considered the representations on climate change which were made by Friends of the Earth and other parties at the inquiry, and has also taken into account the responses to the reference back exercise (paragraph 10 above). For the reasons given at IR12.673-12.678, he agrees with the Inspector’s conclusion that the issues raised as to how shale gas relates to the obligations such as those set out in the Paris Agreement and the Intergovernmental Panel on Climate Change carbon budgets are a matter for future national policy and not for these appeals (IR12.677). The Secretary of State considers that this is also the case for the Government’s approach to Carbon Capture and Storage. He further agrees at IR12.678 that for the purposes of these appeals, the analysis should be limited to a consideration of the project emissions during construction, operation and decommissioning, together with cumulative impacts as assessed by the Environmental Statements within the framework set by national and local policies.

36.

The Secretary of State considers that the need for shale gas exploration set out in the WMS reflects, among other things, the Government’s objectives in the WMS, in that it could help to achieve lower carbon emissions and help meet its climate change target. The Secretary of State has gone on to consider the question of emissions arising from these proposals. For the reasons given at IR12.679, he agrees with the Inspector that there has been no material error in the Environmental Statement estimate of methane emissions. For the reasons given at IR12.682, he further considers that in the light of the support provided by the national policy for shale gas exploration, the emissions likely to arise from the appeal proposals would be entirely reasonable and fully justified (IR12.682).

37.

Overall, the Secretary of State agrees with the Inspector’s conclusion at IR12.686 that the projects would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. He further agrees that the Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm would be reduced to an acceptable level and that the projects represent a positive contribution towards the reduction of carbon, and that the proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy.”

The defendant then turned in the decision letter to consider the site-specific issues which arose in relation to each of the appeals. In so far as the Preston New Road exploration works were concerned, the defendant set out his conclusions on landscape and visual impact in the following terms:

“Landscape and visual impact

50.

The Secretary of State has given very careful consideration to the effect that the proposed development would have on the character and appearance of the surrounding rural landscape and the visual amenities of local residents. He agrees with the Inspector at IR12.69 that it is correct to distinguish between the first and second phases of the development in terms of the duration of the landscape impacts that are likely to be of the greatest concern.

51.

For the reasons given at IR12.81-12.85, the Secretary of State agrees with the Inspector at IR12.85 that the landscape does have some value at local level and the appeal site displays a number of positive characteristics identified by the Lancashire Landscape Strategy. For those reasons, he agrees that it is a ‘valued’ landscape in NPPF terms.

52.

For the reasons given at IR 12.86-12.96, the Secretary of State agrees with the Inspector at IR12.95 that the combined effect of the changes would result in a significant impact on the immediate landscape that would be perceived from a wider area of about 1km. For the reasons given at IR12.97-98 and IR12.126, the Secretary of State agrees with the Inspector’s conclusion at IR12.98 that with suitable controls to reduce upward light pollution, there would be very limited additional impact on the landscape due to lighting. He further agrees, for the reasons given at IR12.99-12.101, that the adverse landscape effects of greatest significance would be experienced during the first phase of the development and this would be a short-term impact. He has taken into account that the particular effects associated with the proposed development would be reversed at the end of the temporary six-year period, and that any localised changes to landscape components would be fully remediated (IR12.101).

53.

When considering the visual effects of the proposal, the Secretary of State has taken into account the Inspector’s assessment of the photomontages which have been provided by parties (IR12.115-12.116). He agrees that the photomontages prepared by Mr Maslen provide a more reliable representation of what would occur (IR12.116), and has taken those photomontages into account in reaching his conclusion.

54.

For the reasons given at IR12.117-12.120, the Secretary of State agrees with the Inspector that the proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live (IR12.118). He agrees that the significant effects would only arise during the earlier phases and would therefore be limited in their duration and would not be experienced throughout the temporary six-year period (IR12.120). He has considered the Inspector’s assessment of the impact on road users at IR12.121-12.126. He agrees with her conclusion that there would be a moderate adverse visual effect for sections of local roads during the drilling, hydraulic fracturing and flow testing phases (IR12.121). He agrees that there would not be a significant impact on transport corridors, and that it is highly unlikely that the impact would materially detract from the overall attractiveness of the area as a tourist location (IR12.125).

55.

For the reasons given at IR12.127, the Secretary of State agrees with the Inspector’s conclusion that any cumulative landscape and visual effects would be very limited and would certainly not be of any significance.

56.

The Secretary of State has considered the implications of imposing a condition limiting the height of the drilling rig to 36m. He has taken into account the operator’s need for flexibility as well as the potential benefits in terms of visual amenity. For the reasons given at IR12.132-12.137, he agrees with the Inspector’s conclusion at IR12.137 that there is no substantial evidence to support the view that there would be any genuine difficulties or undue burden placed upon Cuadrilla in gaining access to a 36m rig. For the reasons given at IR12.138-12.141, he agrees with the Inspector that the change to residential receptors in close proximity to the site would be exceedingly obvious and that the difference would constitute a distinct and real improvement in their visual amenity (IR12.141). He further agrees, for the reasons given at IR12.142-12.148, that such a condition would meet all the tests set out in the NPPF, paragraph 206, and would be in accordance with development plan policy (IR12.148).

57.

The Secretary of State has considered the Inspector’s overall conclusions on landscape and visual impact. For the reasons given at IR12.149-12.153, he agrees with the Inspector at IR12.152 that although there are landscape impacts that would cause demonstrable harm which cannot be eliminated, they have been reduced to an acceptable level and the development would therefore be in accordance with Policy DM2. He further agrees at IR12.154 that there would be no conflict in the long term with the aim of the NPPF to conserve and enhance the natural environment. For the reasons given at IR12.70 and IR12.155-12.156, he agrees with the Inspector at IR12.156 that there would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that there would not be conflict with Policy DM2. Overall he agrees with the Inspector’s assessment at IR12.157 that the landscape and visual impacts associated with the scheme would not be unacceptable.”

Having set out other considerations which arose for determination in the appeal, the defendant expressed his overall conclusions on the appeal in the following terms:

“Planning balance and overall conclusions

66.

For the reasons given above and at IR12.821-12.823, the Secretary of State considers that the proposal would be in accordance with the development plan taken as a whole. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

67.

As regards national policy, the Secretary of State considers that as assessed against the policies set out in paragraphs 18 to 219 of the NPPF, the proposal represents sustainable development. He considers that the development would have the support of the WMS.

68.

He considers that the national need for shale gas exploration is a factor of great weight and that the local economic benefits of the proposal carry little positive weight in support of this appeal.

69.

He has given careful consideration to the objections raised, but is content that the matters of concern could be satisfactorily controlled by planning conditions or by other regulatory regimes, and as such, they can be attributed little negative weight in the planning balance.

70.

The Secretary of State concludes that there are no material considerations indicating other than that the Appeal A development should be permitted in accordance with the development plan, subject to the imposition of appropriate planning conditions. He considers that Appeal A should be allowed and planning permission granted subject to the planning conditions set out at Annex A below. ”

This led to the formal decision of the defendant to accept the Inspector’s recommendation and allow the appeal and grant planning permission for the proposals.

As set out above the first claimant’s Grounds 1, 2, 3 and 5, whilst properly argued separately and discreetly, raise interlinked legal principles and thus it is convenient to deal with them together. Those legal principles are examined further below. The purpose at present is to outline the nature of each of these Grounds so as to provide the context for the observations on the law that follow.

The first claimant’s contentions under Ground 1 are that the Inspector incorrectly interpreted policy CS5 of the Joint Lancashire Minerals and Waste Core Strategy. The first claimant focuses in particular on paragraph 12.152, where the Inspector reaches her conclusion that there would be compliance with policy CS5 on the basis of what she regarded as being the limited duration of the landscape impacts. The claimant submits that policy CS5 contains no reference to effects only being acceptable if they amount to “lasting changes” (to use the language of the Inspector), and further it is contended that policy CS5, properly interpreted, seeks to protect against temporary as well as long-lasting harm. Any proposal which failed to ensure that the landscape, and in particular a valued landscape, was “protected from harm” would conflict with policy CS5. Given the conclusions of the Inspector that there would be significant landscape harm (see for instance paragraphs 12.95, 12.150 and 12.155), it was inevitable that there would be a breach of CS5 if it was properly interpreted before it was applied. A finding of breach of the policy was to be distinguished from a judgment as to the weight to attach to that breach. In that the Inspector should have concluded that there was a breach of the policy, to fail to do so was a clear error of law leading to a failure to properly apply section 38(6) of the Planning and Compulsory Purchase Act 2004. The Inspector’s error was one which was adopted by the defendant in reaching the conclusions which he did in paragraph 57 of the decision, when he adopted the Inspector’s conclusions.

Ground 2 is a reasons challenge. The first claimant’s concerns are that the Inspector has reached inconsistent conclusions, in particular in paragraphs 12.152, 12.153 and 12.154 of her report. In paragraph 12.152 the Inspector states that she considers “that the scheme incorporates measures that would at least serve to conserve and protect Lancashire’s Landscape Character”. The claimant contends that that finding is inconsistent with the conclusion later in the paragraph that “there are landscape impacts that would cause demonstrable harm which cannot be eliminated”, and in paragraph 12.153 that “it is hard to envisage any shale gas development that could be sited without a degree of conflict with that strategy” and in paragraph 12.154 that “there would be an adverse impact upon a “valued” landscape”. The first claimant notes that in the first sentence of paragraph 12.152 the observations about conserving and protecting Lancashire’s landscape character are not expressed as being observations in relation to the long term. Thus, the inconsistencies in the Inspector’s reasons, which are adopted by the defendant in paragraph 57 of the decision, are inconsistencies which give rise to an error of law as the reasoning in the decision is unintelligible. The findings and conclusions are irreconcilable, and as such there has been a clear legal error.

Turning to Ground 3, the first claimant’s contention is that the defendant has adopted an unlawful interpretation of paragraph 109 of the Framework. The first claimant submits that paragraph 12.154 makes clear that the Inspector’s finding that there was no conflict with the Framework involved her in interpreting paragraph 109 of the Framework as including the additional words “in the long term”. The correct interpretation of paragraph 109 of the Framework, which is drafted in absolute terms in relation to the protection of valued landscapes, is that they are to be protected from harmful development even if it is temporary. Thus the Inspector misconstrued paragraph 109 of the Framework, and, based upon the clear and absolute terms of its drafting, should have concluded that the development was in breach of the policy in paragraph 109, bearing in mind that she had accepted that there would be an adverse impact upon the valued landscape as a consequence of the development she was considering. Again, the Inspector’s unlawful analysis was adopted by the defendant in the decision, and thus there was an error of law.

Ground 5 of the first claimant’s case again relates to the failure to properly interpret planning policy, in this case 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 focus of this Ground is the second paragraph of the policy which provides as follows:

“in accordance with policy CS5 and CS9 of the Core Strategy developments will be supported for minerals or waste developments where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that the proposals will, where appropriate, make a positive contribution to:…

•

Residential amenity of those living nearby.”

The first claimant contends that instead of assessing whether or not there was a positive contribution to the residential amenity of those living nearby, the Inspector focused instead upon a different test (set out in paragraph 12.118 of the Inspector’s report) of whether the outlook of any residential property would be affected to such an extent that “it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live”. It was the application of this test which led to the Inspector’s conclusion that there had been compliance with policy DM2 (see paragraph 12.156 in the final sentence). The first claimant’s contentions are that policy DM2 has been misinterpreted by the Inspector and there was a failure to apply the “positive contribution” test required by the policy. In any event, it is submitted by the first claimant that the threshold set by the Inspector in respect of residential amenity was far too high and was inappropriate. Furthermore, the Inspector (and the defendant who adopted her conclusions in this respect) failed to provide any adequate reasons for her approach to policy DM2 and the conclusions which she had reached upon it.

The role of planning policy in the determination of planning applications and the law pertaining to it are set out in general terms in paragraphs 1–5 of the agreed legal propositions, which I gratefully adopt and endorse. It is however necessary, in my view, to say a little more about the correct approach to the interpretation of planning policies, since Grounds 1, 3 and 5 depend in large measure upon arguments related to this issue. For this purpose, in my view, it is appropriate to set out the conclusions of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 in respect of both the correct approach to the interpretation of planning policy, and also how that approach applied in that case to the determination of what “suitable” meant in a planning policy addressing the consideration of applications for retail development. At paragraphs 18, 19 and 21 Lord Reed provided as follows:

“18.

In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as “a proper interpretation” of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a “proper interpretation” of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19.

That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.

…

21.

A provision in the development plan which requires an assessment of whether a site is “suitable” for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word “suitable”, in the policies in question, means “suitable for the development proposed by the applicant”, or “suitable for meeting identified deficiencies in retail provision in the area”, is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed.”

As Lord Reed observed, it is important to approach the interpretation of planning policy with its purpose clearly in mind. Planning policy is created for practical decision-taking. It needs to be interpreted with that practical end in mind and it is wholly inappropriate to seek to interpret planning policy as if it were some form of statute, contract or other legally binding instrument. Secondly, as also emphasised by Lord Reed in paragraph 19 of his judgment, planning policies are frequently composed of language the application of which requires the exercise of judgment, which is properly the province of the decision-taker when gauging the application of the policy against the facts of the particular proposal under consideration. Thus, in his judgment, Lord Reed carefully distinguishes between the interpretation of policy, which is a matter of law, and its application, which will frequently, as a consequence of the language used, require the exercise of planning judgment.

In their submissions, the defendant and the developers both emphasised the reference in paragraph 18 of Lord Reed’s judgment to the need to read policy in its proper context. Matters which are likely to form part of the proper context of a policy for the purposes of its interpretation will include the type of development which the policy addresses. Further, it is likely to include the place that the policy occupies within the overall structure of the relevant policy framework: is this policy one which is a broad statement of strategy, or is it one which engages in the detailed nitty-gritty of development control and decision-taking? The range of different types of policy that can and are required to be prepared as a local development document (recognising that by regulation 6, local plans are only those documents within regulation 5(1)(a)(i),(ii) or 5(2)(a) or (b)) and the variety of objectives and functions they can perform are reflected in regulation 5 of the Town and Country Planning (Local Planning) Regulations 2012 as follows:

“5.—(1) For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are—

(a)

any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following—

(i)

the development and use of land which the local planning authority wish to encourage during any specified period;

(ii)

the allocation of sites for a particular type of development or use;

(iii)

any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv)

development management and site allocation policies, which are intended to guide the determination of applications for planning permission…

(2)

For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are—

(a)

any document which—

(i)

relates only to part of the area of the local planning authority;

(ii)

identifies that area as an area of significant change or special conservation; and

(iii)

contains the local planning authority’s policies in relation to the area; and

(b)

any other document which includes a site allocation policy.”

The role, function and objective of a policy in the development plan as a whole will form part of the context for its interpretation.

A further aspect of the context of a policy for the purposes of its interpretation may be the content of any commonly accepted and authoritative advice or guidance in relation to the topic which the policy addresses. Examples of this may include the GLVIA, as in this case, or, for instance the content of British Standards in respect of noise assessment or tree works when considering the interpretation of a policy in relation to noise impacts or the protection of trees. If the interpretation of a policy would preclude or run counter to the application of such commonly accepted and authoritative advice and guidance then it is most unlikely that that interpretation is the correct way of reading the policy. Such a reading would prohibit or frustrate the use of the advice when it came to the application of the policy. This is by no means any kind of exhaustive list of the contextual material which may need to be taken into account, and there may be other factors which also fall to be assessed as part of the proper context of a policy to be taken into account for the purpose of its interpretation.

Turning to the question of reasons, for the purposes of Ground 2, I accept and adopt paragraph 6 of the agreed legal propositions. For completeness, paragraphs 35 and 36 of Lord Brown’s speech in South Bucks v Porter (No 2) [2004] 1 WLR 1953 provide as follows:

“The law summarised

35.

It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

36.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In approaching decisions of this kind it is necessary to examine a report or a decision by the Secretary of State in a reasonably flexible manner. A claimant will need to establish that the way in which the decision is expressed “leaves room for genuine as opposed to forensic doubt as to what [was] decided and why” (see Clark Homes Limited v Environment Secretary and another [1993] 66 P&CR 263).

Against the background of these legal principles I turn to consider the first claimant’s Ground 1. In my view it is helpful to seek to analyse, firstly, the interpretation of policy CS5 which the first claimant contends for. The first claimant emphasises, in particular, policy CS5(ii), (iv) and (vii) which for ease of reference are set out below:

“Criteria will be developed for the site identification process, and also for considering other proposals brought forward outside the plan-making process, to ensure that…

(ii)

features and landscapes of historic and cultural importance and their settings are protected from harm and opportunities are taken to enhance them…

(iv)

proposals for mineral workings incorporate measures to conserve, enhance and protect the character of Lancashire’s landscapes…

(vii)

sensitive environmental restoration and aftercare of sites takes place, appropriate to the landscape character of the locality and the delivery of national and local biodiversity action plans. Where appropriate, this will include improvements to public access to the former workings to realise their amenity value”

The first claimant submits, for instance at paragraph 35 of their skeleton argument, that “any proposal which failed to ensure valued landscapes are “protected from harm” conflicts with CS5”. Thus any harm to the landscape (provided it was not for a wholly insignificant or de minimis amount of time) would give rise to a breach of policy. It is clear that this approach to the interpretation of policy CS5, and in particular its phrase “protected from harm”, is an interpretation which amounts to contending that any harm to the landscape, including any temporary harm to the landscape, is a breach of policy CS5.

I am unable to accept that such a literal interpretation of the policy, and in particular the phrase “protected from harm”, represents how the policy should be interpreted and understood as a matter of law. In my judgment, such an interpretation dislocates and divorces the language of the policy from its context. In my view, the most important aspect of the context which needs to be borne in mind when approaching the interpretation of policy CS5, is that it is a strategic policy within a hierarchy of policies created by the development plan. The Joint Lancashire Minerals and Waste Development Framework Core Strategy DPD is the strategic policy document within the development plan pertaining to minerals and waste. The strategic purpose of this policy is further reinforced by the introduction to points (i)–(vii), in which the policy itself observes that “criteria will be developed for the site identification process, and also for considering other proposals brought forward outside the plan making process”. This emphasises the broad strategic purpose of policy CS5. It is setting out the strategic objectives to enable more detailed criteria to be developed for land allocation and decision-taking. Its elements are not designed or expressed for the purpose of being applied in a literal manner in decision-taking without regard, for instance, to other policies prepared pursuant to it to give detailed effect to the objectives that the policy sets out.

It follows that a further very important part of the context for understanding CS5 is reading it alongside policy DM2 of the Joint Lancashire Minerals Local Plan Site Allocation and Development Management Policies Part 1 element of the development plan. That policy has been adopted to provide the articulation of policy CS5 at the level of decision-taking or development management. The document was obviously prepared, examined and adopted to give expression to policy CS5 at the decision-taking level. Policy DM2 (already set out above), so far as relevant to this point, provides as follows:

“development for minerals or waste management operations will be supported where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels.” (emphasis added)

These clear terms of policy DM2 are clearly inconsistent with the first claimant’s interpretation of policy CS5. Policy DM2, which has been developed so as to give expression to the strategic objectives of policy CS5, contemplates that there may be demonstrable harm from minerals development, but nevertheless such proposals will be supported where that harm has been reduced to acceptable levels. Thus policy DM2 and its express terms are wholly inconsistent with the first claimant’s interpretation of policy CS5. This, in my view, is sufficient in and of itself to dispose of the first claimant’s arguments in respect of the interpretation of policy CS5. Since policy CS5 was correctly interpreted, in my judgment there can be no question of either the Inspector or the defendant failing to properly apply section 38(6) of the Planning and Compulsory Purchase Act 2004.

There are further aspects of the context which lend support to this conclusion. Firstly, part of the context of interpreting this policy is the fact that it specifically addresses minerals development. Minerals development is very frequently of an impermanent character, involving the exploitation of a mineral resource and subsequent restoration to an after-use. Thus, the nature of the development that the policy seeks to address is one which frequently involves development which does not have permanent effects, and thus it would be surprising if the duration of the development, and the duration of any harm, was irrelevant to the overall assessment of harm for the purpose of this planning policy. Secondly, as will be evident from the facts that have been set out above, the evidence in relation to landscape impact was produced on both sides of the case in accordance with the authoritative professional guidance contained in the GLVIA. The present version of this document was preceded by earlier editions, going back well before the creation of the policies in question in this case. As will also be evident from paragraph 12.99 of the Inspector’s report, the GLVIA itself incorporates advice in relation to the duration of a development and how this is to be taken into account in assessing the significance of landscape harm. Thus, again, it would be surprising, bearing in mind the content of the authoritative professional guidance on the assessment of landscape and visual effects, if policy CS5 were to be interpreted in a manner which excluded consideration of the duration of harm in all cases other than where harm occurred for a wholly insignificant or de minimis period of time.

For all of these reasons, but in particular the reasons associated with the relationship between policy CS5 of the Joint Lancashire Minerals and Waste Development Framework Core Strategy DPD and policy DM2 of the subsequent Joint Lancashire Minerals and Waste Local Plan Site Allocation and Development Management Policies Part 1, I cannot accept the interpretation of policy CS5 contended for by the first claimant. In my judgment the Inspector correctly interpreted and applied policy CS5 in paragraphs 12.252–12.156 of her report, reading policy CS5 alongside policy DM2. There was therefore no error of law of the kind contended for by the first claimant either in this aspect of the Inspector’s report, or in the adoption of those conclusions by the defendant in paragraphs 50–57 of his decision letter.

Turning to Ground 2, I am unable to accept that the Inspector has reached unexplained and inconsistent conclusions in paragraphs 12.152–12.154 of her report. The conclusions which she reaches in the first sentence of paragraph 12.152 relate to the mitigation measures incorporated within the development proposal which was rehearsed by her at paragraph 12.70 of her report. The judgment which she reached, that the incorporation of those measures “would at least serve to conserve and protect Lancashire’s Landscape Character” relates specifically to those aspects of policy concerned with the incorporation of mitigation measures. The “demonstrable harm which cannot be eliminated” is clearly a reference to the temporary harm to landscape character and visual effects which are set out in her detailed reasoning on these points, and drawn together in the paragraphs expressing her conclusions. Thus, the first sentence of paragraph 12.152, whilst not directly referencing the long term, is nevertheless obviously concerned with the question of permanent effects, as it addresses the proposed mitigation incorporating the subsequent restoration of the site. It follows that, in my view, the Inspector’s conclusions are clear, and in particular represent a careful distillation of the views which she sets out earlier in the report in relation to the landscape and visual effects of the proposal. I am therefore not satisfied that the first claimant has established any legal error in Ground 2 of the application.

Ground 3 is a further Ground related to the interpretation of planning policy, in this instance paragraph 109 of the Framework at the first bullet point. Again, in my view it is of assistance to seek to analyse the interpretation which is contended for by the first claimant as part of its case. As set out above, the first claimant contends that paragraph 109 is drafted in absolute terms and therefore valued landscapes are to be protected from temporary, as well as permanent, harm and that there is no warrant to dilute that meaning by interpreting it to mean “protect in the long term”.

Once more, in my view, the context of this policy is of considerable importance in interpreting it. The broad role and scope of national planning policy was set out by Lord Clyde in R (Alconbury Developments Ltd) v SSETR [2001] UKHL 23; [2003] 2 AC 295 in paragraph 140 as follows:

“Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be secured. National planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems. As is explained in paragraph 1 of the Government’s publication Planning Policy Guidance Notes, the need to take account of economic, environmental, social and other factors requires a framework which provides consistent, predictable and prompt decision making.”

Against the backdrop of the potentially wide scope and broad purpose of the Framework, and bearing in mind both the introductory language and the heading used, I am quite satisfied that this policy of the Framework is very plainly setting out a high-level strategic objective for the whole of the planning system. The phrase “protecting and enhancing valued landscapes” is to be read and understood as a high-order strategic objective of the planning system as a whole. How that objective is then achieved is to be articulated in the planning policies which address the appraisal of landscape impact in the context of particular kinds of development. I am unable to accept that paragraph 109 should be interpreted as providing that any harm, including temporary harm other than for a wholly insignificant or de minimis period, is a breach of this policy. I see no difficulty in interpreting the policy as contemplating that valued landscapes could be protected and enhanced by temporary, short-term and reversible development which might either leave the landscape restored and unharmed at the end of the development process, or, alternatively, enhanced by the augmentation of its landscape features, for instance (if appropriate), by hedgerow or tree planting. In my view the defendant was correct to submit that the phrase “protecting and enhancing valued landscapes” is a phrase which, properly interpreted, calls for an overall assessment of harm to the landscape, including short-term harm and any longer-term resolution of that harm or beneficial effects, in order to reach a planning judgment based on that overall assessment as to whether or not the valued landscape has been protected and enhanced. That interpretation places the policy in its proper context, namely, that it is a policy expressing a broad, strategic objective for the planning system.

In submissions Dr Wolfe QC made reference to the approach taken to the Framework in R (on the application of Boot) v Elmbridge Borough Council [2017] EWHC 12. He accepted, in my view correctly, that the analogy between paragraphs 87–89 of the Framework and paragraph 109 of the Framework was not precise. That case involved the proper interpretation of paragraph 89 of the Framework in relation to whether or not development in the Green Belt was inappropriate. That question, which is binary in character, is both by its nature, and also in terms of the language used within those paragraphs of the Framework, very different from the policy contained in paragraph 109. Firstly, paragraphs 87–89 are directly concerned with policy expressly for decision-taking, as opposed to policy which provides an overarching strategic context for the planning system as a whole. Secondly, as I have already observed, paragraphs 87–89 of the Framework lead to a binary outcome: they lead to a determination of development being either appropriate or inappropriate in the Green Belt. That is different from the language used in paragraph 109 which plainly calls for an overall judgment as to whether or not a valued landscape has been protected and enhanced. Thus, there is nothing in the decision in Boot which dissuades me from reaching the conclusion that the first claimant’s interpretation of paragraph 109 as being an absolute requirement even in relation to any temporary impact is not sustainable.

The product of these reasons is that I am satisfied that the Inspector and, in turn, the defendant, properly understood and interpreted paragraph 109 of the Framework in reaching the conclusion in paragraph 12.154 of the Inspector’s report that “there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment”.

Ground 5 again engages with questions about the correct interpretation of planning policy, in this instance policy DM2. The first claimant’s complaint is that the Inspector and the defendant failed to grapple with the question, which it is submitted was required by that policy, of whether or not the proposal made a positive contribution to the residential amenity of those living nearby. Indeed, the first claimant submits that far from applying that policy the Inspector and the defendant engaged with a wholly different question, namely whether the proposal would affect the “outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would be an unattractive place to live”.

In approaching these submissions it is important, in my view, to bear in mind the structure of policy DM2 as set out above. It is, in effect, in two parts. The first paragraph of the text of the policy addresses the approach to be taken to demonstrable harm and requires that demonstrable harm “be eliminated or reduced to acceptable levels”. The second and third paragraphs of the policy engage with when developments will be supported on the basis that they make a positive contribution to a number of defined socio-economic or environmental issues. The policy does not suggest that it is necessary to satisfy both the first and second parts in order for a development to be supported. It is obvious from the way in which the policy is set out that it is possible that compliance with either of the parts of the policy will lead to the development proposal being supported. It follows that a proposal could be supported if it complied with the first part of policy DM2 and eliminated or reduced demonstrable harm to acceptable levels regardless of whether or not it made a positive contribution under the various headings referred to in the second part of the policy.

As a consequence of this, I accept the submissions made by the defendant and the developer that the second part of policy DM2 does not establish a policy test for the acceptability of development which requires it to demonstrate a positive contribution to any or all of the socio-economic or environmental headings contained within the second part of the policy. It was not, therefore, necessary for the Inspector and the defendant to be satisfied that a positive contribution to the residential amenity of those living nearby was made in order for there to be compliance with policy DM2. Clearly, in order to be satisfied that the first part of policy DM2 was met, it was necessary for the Inspector to address the question of whether or not demonstrable harm to residential receptors had been reduced to an acceptable level. The language used in the first part of policy DM2 namely whether “demonstrable harm can be eliminated or reduced to acceptable levels” clearly calls for a planning judgment as to what level of demonstrable harm would be acceptable. In reaching the judgment which the Inspector did at paragraph 12.156 that the harm arising from visual impact associated with the development had been reduced to an acceptable level she took account of, in particular, the number of residential properties affected, the extent of the impact and the duration of that impact. In adopting the approach which she did in paragraph 12.118 of her report to the question of the extent of the impact, namely whether “it would be so unpleasant, overwhelming and oppressive that it would become that [the residence] would become an unattractive place to live” she adopted a formulation which was in my judgment a rational approach to the question of the threshold of acceptability.

It follows that I am not able to accept the first claimant’s interpretation of policy DM2 that it requires, as a test of the acceptability of a proposal, a positive contribution to, amongst other matters, the residential amenity of those living nearby. The policy does not contain that as a requirement of acceptability, but identifies in its second part positive aspects of a development proposal which may lead to it being supported. The passages relied upon by the first claimant are those in which the Inspector was addressing a question under the first part of policy DM2 as to whether or not the impact on residential amenity had been “reduced to acceptable levels”. The planning judgment which she reached in relation to that is clearly expressed and in my judgment entirely lawful.

It follows that on analysis I have not found that Grounds 1, 2, 3 and 5 of the first claimant’s case have been established. Having had the benefit of full argument on those points I am satisfied that they were all arguable, albeit in the final analysis not substantiated.

The complaint raised by the first claimant in Ground 4 of the application is that there was unfairness associated with the change of position of the developer in respect of policy EP11 of the Fylde Local Plan. As set out above, it is submitted by the first claimant that it is clear that in the SOCG the developer accepted that policy EP11 was relevant. Through Mr Smith they sought to contend in their evidence that it was complied with and not breached. During the course of the inquiry their position in relation to that policy changed without either the SOCG being amended or that change being communicated to the public at large and in particular the first claimant, which had based its case upon non-compliance with that policy. Thus, the first claimant based its closing submissions on the application of the policy as part of the development plan considerations in the case, and also relied upon the breach of that policy as a consequence of the proposals. The contentions in the developer’s closing submissions that the policy was not relevant and did not apply (or should be given very little weight) came out of the blue without the opportunity for the first claimant to make any observations in respect of it. This gave rise to an unfairness to the first claimant and prejudice to them such that the defendant’s decision was unlawful.

The essential background to the requirements of fairness in the conduct of a public inquiry in so far as the contents of a SOCG are concerned are canvassed in paragraphs 7 and 8 of the agreed legal propositions. Rule 14 of the Inquiries Procedure Rules provides as follows:

“Statement of common ground

14.—(1) The local planning authority and the applicant shall—

(a)together prepare an agreed statement of common ground; and

(b)ensure that the Secretary of State receives it and that any statutory party receives a copy of it not within 6 weeks of the starting date.

(2)

The local planning authority shall afford to any person who so requests, a reasonable opportunity to inspect, and where practicable, take copies of the statement of common ground sent to the Secretary of State.

(3)

For the purposes of the previous paragraph an opportunity shall be taken to have been afforded to a person where the person is notified of-

(a)publication of the statement of common ground on a website,

(b)the address of the website,

(c)

the place on the website where the document may be accessed, and how it may be accessed”

For completeness, Jackson LJ’s distillation of the principles from the authorities related to the role of the SOCG in the inquiry process and set out at paragraph 62 of the decision in Hopkins Development Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470 is as follows:

“62 From reviewing the authorities I derive the following principles:

i)

Any party to a planning inquiry is entitled (a) to know the case which he has to meet and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.

ii)

If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the Inspector's decision.

iii)

The 2000 Rules are designed to assist in achieving objective (i), avoiding pitfall (ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness.

iv)

A rule 7 statement or a rule 16 statement identifies what the Inspector regards as the main issues at the time of his statement. Such a statement is likely to assist the parties, but it does not bind the Inspector to disregard evidence on other issues. Nor does it oblige him to give the parties regular updates about his thinking as the Inquiry proceeds.

v)

The Inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the Inspector expressly states that they need not do so.

vi)

If a main party resiles from a matter agreed in the statement of common ground prepared pursuant to rule 15, the Inspector must give the other party a reasonable opportunity to deal with the new issue which has emerged.”

This formulation was adopted and applied by the Court of Appeal in Secretary of State for Communities and Local Government and another v Engbers [2016] EWCA Civ 1183.

This distillation of the principles is derived from cases such as R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 678 (Admin), [2008] JPL 1774 and R (Gates Hydraulics Limited) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin). These cases are not completely on all fours with the factual circumstances which arise in the present case. Those cases concerned SOCGs agreed between the appellant and the local authority, and a departure from the settled position of the SOCG agreed between those parties by the Inspector in reaching his or her decision. Here the circumstances of the complaint are somewhat different. The first claimant was not a party to the SOCG, and therefore they are to some extent unlike the disappointed appellants in each of the cases to which I have referred, who complained about a departure from a position which they believed was agreed and settled with their principle opponent. That is not to say by any means that considerations of the requirements of fairness do not arise in this case. It rather, to my mind, requires a broader assessment of the principles of fairness which are engaged in the conduct of a public inquiry of the kind with which this case is concerned.

In that connection the observations of Beatson LJ in the Hopkins Development Ltd case, which provide a broader perspective, are in my view of greater assistance in addressing the matters with which this case is concerned. That appeared to be a view which was broadly accepted by the parties. Beatson LJ’s observations in respect of fairness at public inquiries are adequately captured by the following citation:

“84.

Mr Cahill's submission was essentially that, no matter what transpires at the inquiry, absent a formal statement or other indication by the Inspector, it is procedurally unfair for the Inspector to rely on issues which have not been identified as main issues in dispute in the Rule 7 and 16 statements. The starting point of my explanation of why I reject this submissions is a general proposition about the nature of the "right to be heard" limb of the common law principles of natural justice or procedural fairness.

85.

Provided that certain factors are borne in mind, it does not generally matter whether what is at issue is characterised as "natural justice" or "procedural fairness". The first of those factors is that it is a commonplace that in the context of administrative decision-making the ascertainment of what procedures are required is acutely sensitive to context and the particular factual situation. Fairness is thus a flexible concept, as well as, of course, being subject to any particular requirements in primary and secondary legislation: see R (L) v West London Mental Health NHS Trust [2014] EWCA 47 at [67], citing inter alia R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531, at 560 (per Lord Mustill). Here the relevant legislative and policy framework is contained in the 2000 Regulations and PINS 01/2009.

86.

Secondly, the term "fairness", when first used, was a signal that, although the reach of the "right to be heard" limb of the principle of natural justice had been expanded to new situations, the procedures required in those situations might be less onerous and less formal because of the nature of the decision that is to be made. But, although the precise content of the procedure required will depend on the particular context and circumstances, the underlying principle is of general applicability: Bushell v Secretary of State for the Environment [1981] AC 75 at 95B – C per Lord Diplock; Lloyd v McMahon [1987] AC 625 at 702 per Lord Bridge; and Craig, Administrative Law 6th ed., (2008) at 12-009 – 12-010.

87.

Thirdly, it is important to identify what the "right to be heard" limb of the common law principle gives the individual affected. In R (Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) at [34], I stated that:

"it is clear from decisions in the last 60 years that what is required is an opportunity to be heard, an opportunity to participate in the procedure by which the decision is made."

I gave as examples the classic statement by Denning LJ in Abbott v Sullivan [1952] 1 KB 189 at 198 and the recent statement by Lord Reed in Osborne v Parole Board [2013] UKSC 61 at [68]. The decisions to which my Lord has referred and which I discuss briefly at [89] – [92] show that this is also the broad position in the context of planning inquiries.

88.

The question is thus whether Hopkins had a reasonable opportunity to put its case on sustainability and character and development at the inquiry. As my Lord has explained, extensive evidence was adduced by the main parties and others in the inquiry on the issue of the sustainability of the development in the sense that term is used in the National Planning Policy Framework ("NPPF"). The NPPF regards sustainable development as "a golden thread running through both plan-making and decision-taking" and states (paragraph 14) that "a presumption in favour of sustainable development lies at its heart". At the outset of the appeal the Council made it clear that it relied on lack of sustainability as a reason for resisting the appeal although this was not one of the reasons it had given for refusing the application for planning permission. As to character and appearance, a number of third party objectors raised this issue before the Inspector...

90.

The authorities on planning inquiries considered by my Lord show that in this context what is needed is knowledge of the issues in fact before the decision-maker, the Inspector, and an opportunity to adduce evidence and make submissions on those issues: see Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 77 (Admin) at [65] and R (Tatham Homes Ltd) v First Secretary of State of State [2005] EWHC 3538 (Admin), reported at [2008] JPL 185.”

In response to the first claimant’s contentions the defendant and the developer submitted that the fact that the position of the developer had shifted during the course of the inquiry so as to depart from the SOCG was, or ought to have been, obvious to the first claimant. A number of points were relied upon to support that contention. Firstly, the defendant and the developer drew attention to paragraph 29 of Mr Egan’s second witness statement (which they contended had not been challenged by any alternative evidence put before the court) which noted that at five points during the inquiry, specified in the witness statement, the developer’s case that policy EP11 was not relevant or of application was publicly made clear. Those five occasions were, firstly, within the body of Mr Smith’s proof of evidence, where he suggested that the Fylde Local Plan was not addressing issues relative to hydrocarbon exploration and extraction; secondly, during the course of Mr Smith’s cross-examination on behalf of the first claimant when Mr Smith reiterated his view that policy EP11 was not intended for developments of the kind under consideration; thirdly, when the developer’s counsel, Ms Lieven, cross-examined the County Council’s witness and specifically challenged the applicability of policy EP11 to applications for the exploration of hydrocarbons; fourthly, when counsel for the County Council cross-examined Mr Smith on this point and elicited evidence in chief from his own witness in relation to the applicability of policy EP11, and, fifthly and finally during the course of the developer’s closing submissions when the inapplicability of policy EP11 was expressly pointed out. Thus, it was contended that the application of policy EP11 to these proposals was an issue which was clearly raised and at large during the inquiry proceedings and did not come out of the blue as part of the developer’s closing submissions.

In response to these contentions the first claimant submits that when the question is asked as to whether the first claimant ought reasonably to have known that the position in relation to the SOCG had altered, it must be remembered that they were a participant with limited resources of whom it could not be expected that legal representation would be available for all parts of the inquiry. Further, it was not reasonable to expect that their legal representative would watch back the webcast of the public inquiry so as to see what might or might not have transpired as the evidence unfolded. Fairness required that the change to the SOCG involved in the developer reneging on its position in the SOCG in relation to the applicability of policy EP11 should have been advertised to them.

Further, it was submitted that by the time the suggested inapplicability of policy EP11 was raised in the developer’s closing submissions the first claimant had closed their case and did not have any opportunity to respond to that change of position. Reliance was placed upon the provisions of the Inquiries Procedure Rules in relation to matters following the close of a public inquiry at Rule 17 which provided as follows:

“17.— Procedure after inquiry

(1)

After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations…

(4)

When making his decision the Secretary of State may disregard any written representations, evidence or any other document received after the close of the inquiry.”

Dr Wolfe on behalf of the first claimant relied upon Rule 17(4) which would have precluded the submission of further material to the Secretary of State after the close of the inquiry.

The starting point for considering this issue is the factors to be borne in mind when assessing the question of procedural fairness. In particular, the third factor identified at paragraphs 87 and 88 of Beatson LJ’s judgment is important, namely what is required for the legal demands of procedural fairness to have been met. As Beatson LJ observed “what is required is an opportunity to be heard, an opportunity to participate in the procedure by which the decision is made”. In the particular context of planning inquiries, at paragraph 90 of Beatson LJ’s judgment he elaborated that “what is needed is knowledge of the issues in fact before the decision-taker, the Inspector and an opportunity to adduce evidence and make submissions on those issues”. Against that background it is necessary to examine whether, notwithstanding the terms of the SOCG, the first claimant was aware that there was an issue over the applicability of policy EP11 and had an opportunity to present evidence and submissions on the point.

There is some substance in the defendant and the developer’s suggestion that paragraph 8.24 of Mr Smith’s proof put in contention that policy EP11 was inapplicable, albeit it has to be observed that the point is not made in his proof with anything like the decisiveness of the developer’s closing submissions. In my view what is of central importance in the resolution of this issue is not so much the questioning which may have been conducted by counsel on behalf of the County Council or the developer, but rather the cross-examination which was conducted on behalf of the first claimant of Mr Smith. It is clear from the passage of cross-examination which I have set out above that there was undoubtedly an issue joined in respect of policy EP11 between the first claimant’s counsel and Mr Smith. Within that exchange Mr Smith makes plain his position that the policy was principally aimed at new permanent built development and not mineral development, and counsel on behalf of the first claimant brought Mr Smith’s attention back to the presence of that policy within the SOCG as a relevant policy. Thus, embedded within this exchange, is clearly an issue as to the relevance and applicability of policy EP11. That was a live issue and one with which this cross-examination engaged. When the questions are asked as to whether or not the first claimant knew that there was an issue about the relevance and applicability of EP11 and had an opportunity to provide evidence and submissions on that issue it is absolutely clear in my view that on all counts they did. That was an opportunity which they took up in pointing out to the Inspector in their closing submissions that policy EP11 was contained within the SOCG, and also that Mr Smith had accepted a conflict with that policy. Counsel on behalf of the first claimant properly and effectively took up the points in this regard with the developer’s witness, called evidence from his own expert on the issue, and then incisively set out the case for the Inspector in his closing submissions.

I am unable therefore to conclude that there was any procedural unfairness in what occurred during the course of the inquiry. The issue of the applicability of policy EP11 was debated, in the context of its presence in the contents of the SOCG, and the first claimant participated in that debate and made closing submissions on the point. I cannot therefore accept the submission made by Dr Wolfe that the developer’s position articulated in their closing submission came out of the blue: it was clearly foreshadowed in their evidence and indeed challenged in that respect by the first claimant’s counsel. Thus, leaving aside the contentions made on behalf of the defendant and the developer that the proceedings were attended by representatives of the first claimant throughout and were the subject of a webcast, on the basis of the material set out above, I am satisfied that there was no unfairness to the first claimant in the respect alleged under Ground 4.

I should add, for the sake of completeness, that I was unimpressed by the submissions made by the defendant and the developer in respect of the suggestion that the first claimant ought to have responded to the closing submissions on behalf of the developer either by making further submissions to the Inspector or, alternatively, writing to the defendant. In my view there are very good reasons, in particular the interests of transparency and the need to secure closure of the proceedings, for the practice of the Planning Inspectorate not to receive unsolicited further submissions after the close of a public inquiry. It may be that on occasions, for very good reason, the Inspector at a public inquiry will invite submissions on a particular point to be received after the inquiry has closed. However, that must very much be the exception rather than the rule, and I have no doubt that had the first claimant sought to provide further closing submissions after the close of the inquiry to the Inspector they would have been rightly refused. Rule 17(4) addresses the question of whether or not such submissions should be accepted by the defendant. The defendant has a discretion whether to accept them and it is speculation in this case as to whether or not that discretion would have been exercised in the first claimant’s favour. However, in the light of the conclusions I have reached above, the defendant and the developer’s suggestions in relation to further post-inquiry submissions are, in this case, moot.

Having considered the first claimant’s submissions in relation to Ground 4, I am satisfied that this Ground was arguable, but again, in the event, it has not in substance been made out and must be dismissed.

The second claimant’s Ground 1 is an allegation that the decision reached by the defendant was unlawful on the basis that the ES 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. The cumulative impacts which it is contended should have been the subject of assessment within the ES are two-fold.

The first contention relates to the impact of greenhouse gas emissions arising from what is forecast to be three years and two months of extended flow testing after the initial gas flow testing and flaring has been completed. The period for which the extended flow testing is likely to occur is derived from information contained in Mr Egan’s first witness statement. The second claimant draws attention to the information contained in the ES Non-Technical Summary as to greenhouse emissions during the initial flow testing as being a basis upon which some forecast of the extent of greenhouse gas emissions from the extended flow period of the project might be assessed. Within the ES, greenhouse gas emissions are assessed from a variety of sources, including the flaring involved in the initial flow testing phase, with no such assessment undertaken in respect of the greenhouse gas emissions arising from the extended flow testing phase of the project when the gas wells will be connected to the grid and providing the gas to residential and industrial end-users. On the basis that the extended flow phase will last many times longer than the 90 days forecast for each well to undergo its initial flow testing, the forecast greenhouse gas emissions caused by the extended flow testing would be many times (in submissions Mr Willers estimated 12 times) the estimate of greenhouse gas emissions caused by the initial flow testing. The ES failed to incorporate any information in relation to the environmental effect of greenhouse gas emissions during this extended flow testing period or phase and therefore the ES was legally defective.

The second cumulative effect that the ES left out of account relates to the potential for future continued use for gas extraction of the well pad and associated surface works. This contention was founded on paragraph 39 of Mr Egan’s first witness statement which provided as follows:

“39.

Following completion of these exploration phases, the well pad and associated surface works may either be taken on in to production, subject to Cuadrilla obtaining all necessary additional and further planning and permitting consents, or decommissioned and the site restored to its current agricultural use.”

This observation in Mr Egan’s witness statement is also reflected in the Non-Technical summary in a quotation set out above at paragraph 9. The submission made on behalf of the second claimant is that the ES was defective in that it failed to take account of the environmental effects of this continued extraction of gas after the exploratory consent had been undertaken and therefore the ES was legally flawed. With respect to the second submission under Ground 1, the second claimant recognised the application of paragraph 120 of the Planning Practice Guidance on Minerals (the “PPGM”) which provides as follows:

“Should mineral planning authorities take account of the environmental effects of the production phase of hydrocarbon extraction at the exploration phase?

Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.

When determining applications for subsequent phases, the fact that exploratory drilling has taken place on a particular site is likely to be material in determining the suitability of continuing to use that site only insofar as it establishes the presence of hydrocarbon resources.

Paragraph: 120 Reference ID: 27-120-20140306”

The second claimant contends that paragraph 120 of the PPGM is incompatible with the EIA Directive and seeks a declaration to that effect. The second claimant further claims that if there is any doubt in relation to incompatibility and the requirement for the assessment of indirect effects such as those relied upon arising after the exploratory phase, a reference to the CJEU should be made for a preliminary ruling. The questions drafted for that referral are appended to this judgment as Appendix 2.

The agreed legal propositions at paragraphs 9–12 introduce the background to the consideration of the issues involved in the second claimant’s Ground 1. The EIA Regulations give effect in domestic law to the EIA Directive 2011/92/EU. Regulation 3(4) of the EIA Regulations provides as follows:

“3(4) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

For the purposes of the EIA Regulations “environmental information” means the ES, and the ES means a statement which includes “such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development in which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile” and “includes at least the information referred to in Part 2 of Schedule 4” (see the definitions provided for the purposes of interpretation within regulation 2). Schedule 4 Part 1 paragraph 4 provides as follows:

“a description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development…”

The second claimant relied upon decisions by the CJEU in the cases of Abraham v Wallonia [2008] Env LR 32 Case C-2/07 and Ecologistas en Acción v Ayuntamiento de Madrid (ECJ) [2009] PTSR 458 Case C-142/07. It suffices for the purposes of this judgment to cite the Ecologistas case, which applied the case of Abraham. That case concerned the refurbishment and improvement of the Madrid urban ring road and a contention that it infringed the Directive in circumstances described as follows in the judgment:

“19 After its administrative appeal against the above-mentioned decision of 17 January 2005 had been rejected by decision of 23 May 2005, the claimant brought an action before the referring court for annulment of the latter decision. Like the administrative appeal, the action for annulment is based, inter alia, on a plea alleging infringement of the national rules on environmental impact assessment applicable to such projects and which derive in part from the amended Directive.

20 It is apparent from the order for reference that the Madrid City Council has split the larger “Madrid calle 30” project into 15 independent sub-projects, treated separately, only one of which concerns alteration or rehabilitation work on any existing road on a section exceeding five kilometres, the threshold at which the regional rules applicable make a project subject to an environmental impact assessment, while the larger project taken as a whole substantially exceeds that threshold. It is also clear from the referring court's explanations that, according to certain estimates, the execution of the overall scheme will lead to an increase in traffic of nearly 25% and will involve different kinds of works in the urban area surrounding the M-30.”

For the purposes of the second claimant’s submissions it is important to note the following observations of the Court at paragraphs 39, and then 44–46, of the judgment as follows:

“39 In that regard, in the same way as Directive 85/337 , the amended Directive adopts an overall assessment of the effects of projects or the alteration thereof on the environment. It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works: see, as regards Directive 85/337 , Abraham's case, paras 42 and 43….

44 Last, as the Court of Justice has already noted with regard to Directive 85/337 , the purpose of the amended Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of article 2(1) of the amended Directive: see, as regards Directive 85/337 , Commission of the European Communities v Ireland (Case C-392/96) [1999] ECR I-5901 , para 76 and Abraham v Région Wallonne (Case C-2/07), 28 February 2008 , para 27.

45 As regards the projects at issue in the main proceedings, it is clear from the order for reference that they are all part of the larger project “Madrid calle 30”. It is for the referring court to verify whether they must be dealt with together by virtue, in particular, of their geographical proximity, their similarities and their interactions.

46 Therefore, the answer to the first three questions must be that the amended Directive must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by point 7(b) or (c) of Annex I to the Directive, or where they are projects covered by point 10(e) of Annex II or the first indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment. ”

In a domestic context the question of cumulative effect was considered by the Court of Appeal in Brown v Carlisle City Council [2010] EWCA Civ 523. The facts of that case were that the operator of Carlisle airport made an application for replacement and realignment of the airport runway, development of airport buildings and the construction of a new freight distribution centre. The application was called in by the Secretary of State following which it was withdrawn. A second application was then submitted for a smaller freight distribution centre without the replacement and realignment of the runway and new airport terminal facilities, proposing instead the repair and resurfacing of the main runway and the re-use of an existing building for an airport terminal. The repair and resurfacing of the runway and the use of an existing building as an airport terminal were to be undertaken deploying permitted development rights. A planning obligation under section 106 of the Town and Country Planning Act 1990 accompanied the application requiring the undertaking of the repair and resurfacing of the runway and the completion of the creation of the airport terminal within the existing building. The ES accompanying the application addressed solely the likely significant environmental effects of the freight distribution centre and not the works required by the section 106 obligation to repair and resurface the existing runway and complete the airport terminal building. It was submitted that the ES was therefore defective because it did not address the cumulative effect of the development for which permission was sought in terms of both the freight distribution centre and the section 106 works.

The conclusions of Sullivan LJ giving the leading judgment in the Court of Appeal with which the other members of the Court agreed were expressed in the following terms:

“21 No authority was cited for the proposition that the connection between two developments must be an operational or functional one for the environmental effects of one of the developments to be part of the cumulative effects of the other. The answer to the question—what are the cumulative effects of a particular development—will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link. I have set out the Committee’s Summary Reasons for granting planning permission and the relevant passages in the Report (in [3] and [10] above]). It is plain that the Committee did not consider the planning merits of the Freight Distribution Centre in isolation without regard to any of its cumulative effects. Considered in isolation the Freight Distribution Centre was not in accordance with the Development Plan. The “development as a whole” was (rightly or wrongly, see [22] and [23] below) regarded by the Committee as “policy compliant” only because one of the cumulative effects of the development would be the “delivery” of the airport works through the mechanism of the s.106 Agreement. The s.106 Agreement did not permit the airport works, nor did it compel the Interested Party to carry them out, but it did ensure that the Freight Distribution Centre could not lawfully be developed (built and occupied) in isolation, it could be developed only if its cumulative effects included the carrying out of the airport works.

22 When Mr Mould QC was asked to explain the apparent change in position between the Planning Officer’s advice in para.5.162 of the report—that the development for which permission was being sought was not in accordance with the Development Plan, but would enable improvements to the airport which would be a considerable benefit which could override the harm resulting from that conflict with policy (in [9] above)—and the advice in para.5.171 of the Report—that if members accepted that by linkage with the intended s.106 Agreement approval of the development would be the facilitator of the airport investment “the application would become policy compliant in its full sense and would not require to be referred to the Secretary of State” (see [10] above), he replied that in para.5.162 the Planning Officer had set out his own view, whereas in para.5.172 he had recognised that it was open to members to form a different view: that if they were satisfied that the terms of the s.106 Agreement would provide a sufficient degree of commitment on the part of the Interested Party to bring forward a scheme of works for the rejuvenation of the airport, then the commitment to facilitate these works would be sufficient to make the application for planning permission compliant with the Development Plan.

23 Whether or not this was an adequate justification for the Committee’s conclusion that the proposed development did comply with the Development Plan, it is difficult to see how the Interested Party’s commitment in the s.106 Agreement to bring forward the airport works could on the one hand have been sufficient to ensure that, as the Committee said in the Summary Reasons for granting permission, “the development as a whole” could be regarded as policy compliant for the purposes of the Development Plan; but on the other hand have been insufficient to ensure that the bringing forward of the airport works would be part of the cumulative effects of the development for the purposes of the EIA Regulations …

28 Mr Village QC submitted that it was unnecessary to include information as to the environmental effects of the airport works in the Environmental Statement because these works were “inchoate”. In the absence of sufficient detail of the airport works it was not reasonable (see the definition of environmental statement in reg.2(1), and in [5] above) to require an assessment of their environmental effect as one of the cumulative effects of the development. He referred to the provisions of the agreement which require substantial completion of a terminal building with a floor space of no less than 400 square metres, while leaving open the possibility of a planning application for a terminal with a floor space in excess of 500 square metres (in [12] above).

29 This submission is not well founded for two reasons. First, there is no evidence that this was the basis on which the defendant considered whether the environmental effects of the airport works should be assessed as part of the cumulative effects of the development and concluded that they should not. Secondly, any lack of detail about the airport works was not such as to prevent the defendant from assessing, with the assistance of advice from EKOS and ASA, the economic, transportation and tourism advantages of securing their implementation through the mechanism of the proposed s.106 Agreement. Thus, EKOS was able to assess the market potential for both commercial passenger and air cargo operations (Report, paras 5.65–5.75), and ASA was able to describe what was likely to be provided by way of passenger terminal facilities and to provide a specification for the repair/renewal of the existing main runway (Report, in paras 5.141–5.150). ASA was also able to advise by reference to the likely number of Air Traffic Movements (ATMs) on the “safety issues” arising out of the use of the new facilities at the airport (Report, in para.5.152).

30 Mr Village submitted that the assessments by EKOS and ASA were based on the “minimum case”: the airport works required by the s.106 Agreement and no more. On a fair reading of the Report that submission puts the cart before the horse: it was the earlier assessments by EKOS and ASA that informed the content of the s.106 Agreement. To the extent that they described a minimum, rather than, as would appear from the report, the likely case in respect of the airport works, there is no reason why this could not have been reflected in any assessment of the environmental effects of those works as part of the cumulative effects of the development.

31 For these reasons there is no doubt, in my judgment, that the grant of planning permission was unlawful because there was a failure to comply with reg.3(2) of the EIA Regulations. In the light of this conclusion it is unnecessary to consider the further basis on which Mr Jones advanced the claimant’s EIA challenge: that there was also a breach of the Directive because the project for the purposes of the Directive included the airport works. ”

Similar issues were also recently considered in the case of R (Frack Free Ryedale) v North Yorkshire County Council and another [2016] EWHC 3303 (Admin). In that case Lang J considered an application for judicial review of an application for gas extraction by hydraulic fracturing, and a contention in judicial review proceedings following the grant of planning permission for that activity that the Council had failed to take into account as part of the environmental impacts “an assessment of the material indirect/secondary/cumulative climate change impacts arising from the burning of the gas at Knapton [gas-fired electricity generating station] in the production phase of the development”. Having reviewed the authorities the conclusions which Lang J reached in relation to this point were as follows:

“The Environmental Statement

37 The Claimants submitted that the ES was defective because of the omission of any assessment of the environmental impacts of burning gas from the KMA well site at Knapton, which were either part of the direct effects of the project or part of its indirect, secondary or cumulative effects.

38 I do not consider that the Claimants' submissions were well-founded, and I accept the submissions of the Council and Third Energy on this point. In my judgment, the Council was entitled, in the exercise of its judgment, to conclude that an assessment of the environmental impacts of burning gas from the KMA well site at Knapton was not required, for the following reasons.

39 The application for planning permission did not include any development at Knapton. Knapton already had planning permission and it was already authorised by the Environment Agency to burn gas from existing well sites, thus generating potentially harmful emissions, including carbon dioxide. No increase in capacity at Knapton was sought as part of this proposal. Any gas produced from the KMA well site and piped to Knapton would be within the existing limits of the permits already conferred by the Environment Agency. Paragraph 122 of the National Planning Policy Framework (“NPPF”) advises planning authorities that they should focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes, and it should be assumed that those regimes will operate effectively. The gas supply from KMA would be indistinguishable from the gas piped from other well sites, and so its environmental impact could not be separately quantified. The argument that the proposed development was an integral part of a more substantial project which included Knapton was rightly abandoned by the First Claimant. Applying the guidance given in Hardy and Blewett, I do not consider that the Claimants have established any defect in the ES or any error of law in the Council's reliance upon it.”

I propose to address the second basis upon which this Ground was advanced in the first instance, since in my view there is a readily obvious solution to the second claimant’s point. In my view there were no indirect, secondary or cumulative impacts which had to be assessed arising from the suggestion that there might be some continuation of the use of the site for gas extraction after the completion of the development for which permission was sought. Firstly, the application before the Inspector and the defendant had to be addressed on its own terms. As set out above, the application was for permission for exploration and appraisal of the potential gas resource within the Bowland shale for a period of six years. It was therefore strictly limited in time and solely for the purpose of exploration of the potential gas resource.

Secondly, any further gas extraction beyond that for which the application had been made would have to be the subject of a new planning application either in the form of an application under section 70 of the 1990 Act, or alternatively an application for a change of the conditions on the present consent under section 73 of the 1990 Act (thereby creating a new planning permission). Whichever route might be taken, as set out in the Non-Technical Summary and acknowledged in the submissions of the defendant and developer, a new ES would have to be prepared describing the likely significant effects of that further application. Thus, both on the basis of the application on its face and also as a consequence of the need for further planning permission to be granted for any gas extraction after the life of the present permission, there are no indirect, secondary or cumulative effects to be evaluated in the present ES. The present ES was therefore legally adequate.

Turning to the first basis upon which the ES is said to be legally flawed it was accepted on all sides that the factual circumstances in the Frack Free Ryedale case are not directly comparable to the present case on the basis that in the Frack Free Ryedale case all of the gas which was being extracted during extended flow was being piped to the facility at Knapton, which was itself the subject of existing regulation as set out in paragraph 39 of Lang J’s judgment. Thus, its greenhouse gas emissions were already regulated and would not be increased. However, in my view by analogy the approach taken in that case is of some application to the present case. As was submitted by the defendant and the developer, quite apart from the fact that this complaint was not raised either prior to or during the public inquiry, there is and was no evidence to support any suggestion that the provision of gas from the application site to the grid, and thereby to residential or industrial users, will lead to any increase in the consumption of gas and therefore the generation of greenhouse emissions in the UK. It is in my judgment a perfectly sensible assumption, on the basis of the evidence that was before the decision-taker and, for that matter, the Court that any gas provided to the grid during the extended flow phase will simply replace gas that would otherwise be consumed by residential and industrial users supplied by the grid, and thus there is no evidence that there would actually be any increase in gas usage and or greenhouse gas emissions. Thus, there were no indirect, secondary or cumulative effect of the kind suggested arising from the exploration phase which required inclusion within the ES. There is a clear distinction to be drawn between the position at the stage of the extended flow phase when the wells would be connected to the grid, and the flaring which would occur during the initial flow testing phase. The flaring plainly gives rise to the burning of gas and generation of greenhouse gases that would not otherwise arise and which, therefore, is properly the subject of assessment within the ES.

It follows from the foregoing that I am not satisfied there is any substance in the complaint raised by the second claimant in respect of paragraph 120 of the PPGM. In my view the approach adopted in the PPGM is correct and compliant with the requirements of the Directive and the EIA Regulations. As explained above, any future activities at the site which might be subsequently contemplated after the initial flow and extended flow phases would need to be the subject of fresh permissions and permits, which will themselves be the subject of the provision of environmental information in the form of an ES. The consideration of applications for exploration should be considered on their own merits as paragraph 120 advises without speculation or hypothetical assumptions in relation to future activities which will require their own consenting and EIA processes. In these circumstances I am satisfied that paragraph 120 of the PPGM is consistent with the relevant legal principles, and see no basis upon which a reference to the CJEU should be made in this case.

Having considered the arguments raised in relation to the second claimant’s Ground 1, I am satisfied that this Ground is arguable, but upon analysis is not made out in substance and does not justify the grant of relief.

The second claimant’s Ground 2 is that it was irrational for the defendant to approve the application on the basis that in the light of the evidence, and applying the precautionary principle, the defendant 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. The precautionary principle is set out in paragraph 16 of the agreed legal propositions from Afton Chemical Limited v Secretary of State for Transport [201] 1 CMLR 16 Case C-343/09 and is explained as follows:

“Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the real likelihood to harm to public health persists should the risks materialise, the precautionary principle justifies the adoption of restricted measures, provided they are non-discriminatory and objective.”

The second claimant contends that in the light of the uncertainties set out in the evidence of Dr McCoy and the reports of Medact, and the concerns which were expressed both as to the impacts upon human health arising from this form of mineral extraction together with the concerns as to the adequacy of the regulatory regime controlling those impacts, the precautionary principle demanded that planning permission could not rationally be granted and should have been refused.

The interrelationship between the operation of planning legislation and other areas of environmental control has been the subject of considerable previous consideration by the courts. Perhaps the first example of this issue is the Court of Appeal’s decision in Gateshead MBC v Secretary of State for the Environment [1995] Env LR 37, [1994] 1 PLR 85 which concerned whether or not the Secretary of State in granting planning permission had been correct to conclude that the powers of the then regulator (Her Majesty’s Inspectorate of Pollution) were sufficient to deal with the concerns raised in relation to emissions from the proposed development. In delivering the leading judgment of the Court of Appeal Glidewell LJ observed as follows:

“The central issue is whether the Secretary of State is correct in saying that the controls under the Environmental Protection Act areadequate to deal with the concerns of the Inspector and assessor. The decision which was to be made on the appeal to the Secretary of State lay in the area in which the regimes of control under the Planning Act and the Environmental Pollution Act overlapped. If it had become clear at the inquiry that some of the discharges were bound to be unacceptable so that a refusal by HMIP to grant an authorisation would be the only proper course, the Secretary of State following his own express policy should have refused planning permission.

But that was not the situation…Once the information about air quality at both of those locations was obtained, it was a matter for informed judgment, i) what, if any, increases in polluting discharges of varying elements into the air were acceptable, and ii) whether the best available techniques etc would ensure those discharges were kept within acceptable limits.

Those issues are clearly within the competence and jurisdiction of HMIP. If in the end the Inspectorate conclude that the best available techniques etc would not achieve the results required by section 7(2) and 7(4) it may well be that the proper course would be for them to refuse an authorization…They (HMIP) should not consider that the grant of planning permission inhibits them from refusing authorisation if they decide in their discretion that this is not the proper course.

The Secretary of State was, therefore, justified in concluding that the areas of concern which led to the Inspector and the assessor recommending refusal were matters which could properly be decided by HMIP, and that their powers were adequate to deal with those concerns.”

The approach taken in Gateshead was applied by Patterson J in R (An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change [2013] EWHC 4161 (Admin). That case concerned a judicial review of a decision by the defendant to grant a development consent order for a new nuclear power station. One of the bases of challenge was that the defendant was wrong to rely upon the future exercise of regulatory controls in relation to impacts upon the environment. Patterson J set out the approach in principle, and its application to that case, in the following terms at paragraphs 180, 181 and 193 of her judgment:

“180.

“The position in Gateshead is analogous to the situation here. First, there is no doubt that the existence of a stringent regime for authorisation and planning control is a clear material consideration. Second, where, as here, at the time of the development consent determination the matters to be left over for determination by another regulatory body were clearly within the competence and jurisdiction of that body, as they are here within the remit of ONR it is, in principle, acceptable for the Secretary of State not only to be cognisant of their existence but to leave those matters over for determination by that body.

181.

At the time of the Secretary of State's consideration of whether to grant development consent there was no evidence to suggest that the risk of an accident was more than a bare and remote possibility. In the instant case the regulatory regime is in existence precisely to oversee the safety of nuclear sites. There is nothing in the Directive and Article 7, in particular, to require the regulatory regime to be disregarded. NPS EN-6 refers to reliance being placed in the DCO process on the licensing and permitting regulatory regime for nuclear power stations, to avoid unnecessary duplication and delay and to ensure that planning and regulatory processes are focused in the most appropriate areas. It would be contrary to the accepted principle in Gateshead not to have regard to that regime, and in my judgment it would also be entirely contrary to common sense...

193.

In my judgment there is no reason that precludes the Secretary of State from being able to have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control. Because of its existence, he was satisfied, on a reasonable basis, that he had sufficient information to enable him to come to a final decision on the development consent application. In short, the Secretary of State had sufficient information at the time of making his decision to amount to a comprehensive assessment for the purposes of the Directive. The fact that there were some matters still to be determined by other regulatory bodies does not affect that finding. Those matters outstanding were within the expertise and jurisdiction of the relevant regulatory bodies which the defendant was entitled to rely upon.”

There was a subsequent unsuccessful appeal to the Court of Appeal (see [2014] EWCA Civ 1111) in which Sullivan LJ entirely endorsed the approach taken by Patterson J in dismissing the challenge.

It will be recalled that the Inspector in addressing questions of public health impact in her report referenced the relatively recent decision of Gilbart J in R (on the application of Frack Free Balcombe Residents Association) and another v West Sussex CCC [2014] EWHC 4108 (Admin). In that decision, having set out the authorities, Gilbart J expressed his conclusion in relation to an allegation that the defendant in that case had wrongly assumed that the Environment Agency and the Health and Safety Executive would exercise effective control over emissions to air, ground contamination and the integrity of the wells for gas extraction, in the following terms:

“100.

So far as Ground 1 is concerned, it essentially comes down to Mr Wolfe arguing that it is wrong for a planning authority to consider that it can assume that environmental controls would be properly applied. He contends that it should not make the assumption if it has material placed before it which raises issues which could persuade the Planning Committee that such controls would not exist or would not be properly applied. I have already determined that in my judgment that was simply was not the case here. But in any event, in my judgment there is ample authority to the effect that the Planning Authority may in the exercise of its discretion consider that matters of regulatory control could be left to the statutory regulatory authorities to consider. There was ample material before it that all matters of concern could be and would be addressed, as set out in the officer’s very careful report.

101.

In my judgment what happened here was that the committee accepted its officer’s advice that it had sufficient information to determine the application, and that it should and could assume that the matters could be dealt with by the EA and by the HSE. That is what she advised them, and that is what the Minutes record. She did so after setting out all the issues. That approach was entirely in keeping with long standing authority, and also with long standing policy advice. There is no question here of any gap being left in the environmental controls, and none was identified by Mr Wolfe. Each question raised by the objectors was dealt with in the officer’s report with great thoroughness, and the Committee was quite entitled to accept her professional view that the matters in question could be left to the other regulatory bodies.

102.

Indeed, the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant’s members have about the effects on the environment. The Claimant and its members’ concerns are in truth not with the planning committee’s approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee.”

Against the backdrop of these legal principles I am unable to accept that the second claimant’s Ground 2 is properly arguable. It has to be recalled that the second claimant’s case in relation to this ground is founded on irrationality. That is to say, they contend that no reasonable planning decision-taker could have concluded that planning permission should be granted. As has been regularly pointed out, in planning cases it will be very difficult for a claimant to demonstrate that a decision-taker has reached an irrational planning judgment (see, for instance, R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment Transport and the Regions [2001] EWHC (Admin) 74 at paragraph 7). That is, of course, different from saying that the judgment reached is one over which reasonable people might reasonably disagree. My reasons for concluding that it is not arguable that the conclusions of the Inspector and the defendant were irrational and conclusions that no reasonable decision-taker could have reached are as follows.

Firstly, it is important in my view to observe that the approach taken by the Inspector to the relationship between the decision-taking process in the planning regime and other regulatory regimes in paragraphs 12.590–12.595 is entirely orthodox and unimpeachable. She faithfully applied the approach taken in the Frack Free Balcombe case, and the preceding line of authority upon which it was based. The Inspector properly identified that there may be arguments available to the objectors to a planning application on the basis that they are able to demonstrate a gap in the available environmental controls contained in parallel regulatory systems. Against the background of those well-settled principles she concluded that the regulatory regime could be relied upon to operate effectively so as to safeguard human health. In paragraphs 12.655–12.662, within which she sets out a detailed evaluation of the concerns expressed in relation to public health and the effectiveness of the regulatory regime, the Inspector clearly expresses herself satisfied that the regulatory system would operate effectively so as to control potential hazardous emissions to air and water. She also considers the further concerns expressed by Dr McCoy in relation to other potential health and wellbeing impacts of the developments. Having done so, she nonetheless explains in clear terms why the monitoring and control imposed by the regulatory regime could be relied upon to effectively obviate these concerns. In summary, she reaches the conclusion, as a matter of judgment, that “all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level”. This is against the backdrop of the evidence which has been set out above expressing concerns as to the reliability and robustness of the regulatory regimes.

Whilst the second claimant emphasises the operation of the precautionary principle, relying upon the concerns raised by Dr McCoy and the Medact reports (which as set out above include concerns in relation to the operation of the regulatory regimes), I am unconvinced that the principle adds to the second claimant’s rationality argument. The existence of doubts and concerns on behalf of Dr McCoy and the other authors of the material before the Inspector does not inexorably lead to the conclusion that because those doubts existed it was not open to the Inspector to conclude as she did that the regulatory regime would operate effectively, and thereby control the environmental and public health effects of the exploration proposal. I am wholly unpersuaded that it is arguable that, taking account of the precautionary principle, it was irrational for the Inspector to recommend approval, and thereafter the defendant to accept that recommendation. The Inspector was clearly alive to the second claimant’s and other objector’s reliance on the precautionary principle and she took this into account, in particular in addressing the points raised by Dr McCoy and Medact which were, at least in part, based upon it. The Inspector was entitled to reject the concerns expressed by Medact and Dr McCoy for the reasons which she gave and, applying the principles set out in Frack Free Balcombe, conclude that it was appropriate to recommend the grant of planning permission. The defendant’s decision, which relied upon the conclusions reached by the Inspector was similarly free from legal error.

It follows that in relation to the second claimant’s Ground 2, having considered the arguments advanced, I would not have granted permission to apply for judicial review on the basis that I have formed the opinion that the Ground is not arguable.

It follows from what has been set out above that in relation to the first claimant’s case, having analysed the matters raised, I am satisfied that whilst permission should be granted for each of the Grounds to be argued, none of them have been made out in substance, and the first claimant’s claim must be dismissed. Turning to the second claimant, whilst Ground 1 of the second claimant’s case is arguable and permission should be granted, it is not made out in substance. The second claimant’s Ground 2 is not arguable and permission to apply for judicial review must be refused. Overall, therefore, the second claimant’s claim must also be dismissed.

The duty to determine the application in accordance with the development plan

The duty at s.38(6) Planning and Compulsory Purchase Act 2004 amounts to a duty to afford the policies of the development plan “priority” see: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 per Lord Clyde at 1460.

A decision-maker must“… proceed upon a proper understanding of the development plan”. It “cannot have regard to the provisions of the plan if it fails to understand them” see: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 per Lord Reed at [17].

The proper interpretation of policy is a question of law for the Court see: Tesco“in principle…policy statements should be interpreted objectively in accordance with the language used, read always in its proper context” per Lord Reed at [19]. Notwithstanding that, statements of policy “should not be construed as if they were statutory or contractual provisions” and “many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment”: Tesco per Lord Reed at [18].

The same applies to policies within the NPPF Suffolk Coastal DC v Hopkins Homes Ltd [2016] EWCA Civ. 168 per Lindblom LJ at [24] and [45].

Breach of the development plan arising from a particular consideration must be distinguished from an adverse impact which is simply weighed in the general planning balance. That is because the statutory presumption against planning permission at s.38(6) of the 2004 applies following breach of development plan, see: R(Wilkinson) v South Hams District Council [2016] EWHC 1860 (Admin.) per Hickinbottom J at [21].

The duty to supply reasons

The leading authority on the standard of reasoning required in these circumstances is derived from the speech of Lord Brown in South Bucks v Porter (No.2) [2004] 1 WLR 1953 at [35]-[36].

The duty to conduct the inquiry in accordance with the rules of natural justice

An inquiry must be conducted in accordance with the rules of basic procedural fairness. The leading authority in this context is the judgment of Jackson LJ in Hopkins Developments Ltd v SSCLG [2014] EWCA Civ. 470 at [62].

Where a party does not resile from the statement of common ground, and the Inspector does not reveal at the inquiry his or her disagreement with a matter contained in that statement and that disagreement influences the outcome of the appeal, the court may be unable to uphold the decision unless it can be shown that the claimant ought reasonably to have been aware of that issue and its potential significance for the decision from another source: Engbers v SSCLG [2015] EWHC 3541 (Admin.) per Holgate J at [25].

Environmental Impact Assessment

The EIA Directive provides the framework for environmental impact assessment. The TCP (EIA) Regulations 2011 seek to transpose the EIA Directive in England.

“Environmental information” is defined under Regulation 2(1) as “the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development”. “Further information” is defined in Reg. 2(1) and 22(1) as the additional information required by the local planning authority from the applicant in order to make the environmental statement constitute an environmental statement.

The information in Part 2, Schedule 4 of the EIA Regulations 2011 that must be included in the environmental statement includes “the data required to identify and assess the main effects which the development is likely to have on the environment” and “a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects”.

An environmental statement has to include such information as is reasonably required to assess the impacts of the development and which the applicant could reasonably be required to compile having regard to current knowledge: R (Khan) v Sutton LBC [2014] EWHC 3663 (Admin), perPatterson LJ at [121].

Reference to the CJEU

Article 267 TFEU states that any court or tribunal may make a request for a preliminary ruling to the CJEU if it consider that a ruling is necessary to enable it to give judgment in the case.

The obligation to refer a matter to the CJEU is “based on co-operation, established with a view to ensuring the proper application and uniform interpretation of Community law in all Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice”: see CILFIT Srl v Minister of Health [1982] ECR 3415 at [7].

In CILFIT at [10]-[21],the CJEU stated that a preliminary ruling request would “not” be necessary where:

Precautionary Principle

In Afton Chemical Ltd v Secretary of State for Transport Case C-343/09 [2011] 1 CMLR 16 the CJEU outlined, at para 61, what has become known as the precautionary principle:

“Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the real likelihood of harm to public health persists should the risks materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective.”

The Court’s Discretion

If the Court identifies a legal error, the decision should be quashed unless the Court is satisfied the decision taker“necessarily would have reached the same conclusion” had he not made that error of lawper Purchas LJ in Simplex GE (Holdings) Ltd v SSE (1989) 57 P & CR 306, 327.

Should national courts treat differently the avoidance of environmental effects of a project depending upon whether the assessment being reviewed by the national courts relates to screening as to whether EIA is required or assessing the nature and scope of an Environmental Statement that has been produced? In other words, is the jurisprudence on circumventing EIA in Abrahams, Ecologistas, etc equally applicable to projects that are regarded as within the scope of the Directive but where it is alleged that the environmental information/statement and subsequent assessment is inadequate in its scope through the exclusion of consideration of future impacts and effects of exploitation?

In relation to the exploration for shale gas via unconventional extraction methods (fracking) and the necessary assessment under the EIA Directive, is national policy requiring the decision-maker to ignore the production stage that flows from exploration incompatible with the Directive having regard to the need to consider the cumulative impacts and effects of exploration including the indirect, secondary, tertiary and long term effects?