Lord Justice Lindblom:
Introduction
1.
Did the Secretary of State for Communities and Local Government err in
law in granting planning permission for exploration works to test the
feasibility of extracting shale gas by the process of hydraulic fracturing –
commonly known as “fracking” – at two sites in Lancashire? That is the basic
question in these two appeals. It does not raise any novel or controversial
issue of law.
2.
Though they are concerned only with exploration for shale gas, and not
with its commercial extraction, the proposals have attracted strong opposition
in the local communities affected by them. Our task, however, is not to consider
whether the Secretary of State’s decision was right. Any view the court might
hold about “fracking”, or about the planning merits of these particular
proposals, is entirely irrelevant. What we must do, and all we can do, is to decide
whether the Secretary of State committed any error of law. To do this we must
apply well established principles governing the review of planning decisions,
recently confirmed by this court in St Modwen Developments Ltd. v Secretary
of State for Communities and Local Government [2017] EWCA Civ 1643 (see my
judgment, at paragraph 6).
3.
In the first appeal the appellant is the Preston New Road Action Group;
in the second, Mr Gayzer Frackman. The appeals are against the order of Dove
J., dated 25 April 2017, by which he dismissed applications made under section
288 of the Town and Country Planning Act 1990 challenging the decisions of the
Secretary of State, the first respondent in both appeals, to allow appeals by
Cuadrilla Bowland Ltd. and Cuadrilla Elswick Ltd. against refusals of planning
permission by Lancashire County Council as mineral planning authority. I shall
refer to both companies simply as “Cuadrilla”. Their proposals were for
exploration works, including exploratory wells, and associated monitoring to
test the feasibility of the commercial extraction of shale gas, on two sites –
one at Plumpton Hall Farm, off Preston New Road, near Fylde, the other at
Roseacre Wood, Roseacre Hall, Roseacre and Wharles, near Preston, and to
restore the sites to agriculture once exploration has concluded.
4.
In June 2015 the county council refused both applications for the Preston
New Road site and the application for exploration works at Roseacre Wood, but
granted planning permission for monitoring works at Roseacre Wood, subject to
conditions. Cuadrilla appealed. An inspector appointed by the Secretary of
State, Ms Wendy McKay, held an inquiry in February and March 2016. In a report
dated 4 July 2016 she recommended that the appeals for the Preston New Road
development and for the monitoring works at Roseacre Wood be allowed, and that
for the exploration works at Roseacre Wood be dismissed. In his decision
letter, dated 6 October 2016, the Secretary of State allowed the appeals for
the Preston New Road development, and for the Roseacre Wood monitoring works.
But instead of dismissing the appeal for the exploration works on that site, he
decided to re-open the inquiry to enable Cuadrilla to submit further evidence
on highway capacity and safety, and indicated that he was minded to allow the
appeal if the new evidence was satisfactory. Both challenges came before Dove
J. at a “rolled-up” hearing on 15 and 16 March 2017. He dismissed both
applications. The action group’s appeal is against the judge’s order where it
concerns the development proposed at Preston New Road. Mr Frackman’s relates to
the proposals on both sites.
5.
A full account of the relevant facts is to be found in Dove J.’s
judgment, in paragraphs 6 to 37. It is not necessary to repeat that narrative
here. I gratefully adopt it.
The issues in the appeals
6.
The two appeals raise quite different issues. In the first appeal there
are four live grounds, which give rise to these main issues:
(1) whether the Secretary
of State misconstrued and misapplied Policy CS5 of the Joint Lancashire
Minerals and Waste Development Framework Core Strategy (“the minerals core
strategy”) (ground 1 of the appeal);
(2) whether the Secretary
of State misconstrued and misapplied Policy DM2 of the Joint Lancashire
Minerals and Waste Local Plan: Site Allocation and Development Management
Policies – Part One (“the minerals local plan”) (ground 5);
(3) whether the Secretary
of State misconstrued and misapplied the policy for “protecting and enhancing
valued landscapes” in paragraph 109 of the National Planning Policy Framework
(“the NPPF”) (ground 3); and
(4) whether the Secretary
of State’s decisions were vitiated by procedural unfairness – because he
concluded that Policy EP11 of the Fylde Local Plan was not engaged by the
proposals without giving the parties the opportunity to comment on that
conclusion (ground 4).
In the second appeal, the four
main issues are these:
(1) whether, for the
purposes of Directive 2011/92/EU, as amended (“the EIA Directive”), the
Secretary of State failed to heed the relevant principles on “cumulative
effects” – in particular, for the direct impact of the extended flow testing
phase of the proposed development, and for the indirect impact of the
production stage of the project (ground 1);
(2) whether he failed to
act in accordance with the principle, under the regime for environmental impact
assessment (“EIA”), that potentially significant effects on the environment
ought to be taken into account at the earliest possible stage (ground 2);
(3) whether his decisions
are flawed by inconsistency because he took into account the benefits of shale
gas production but left out of account the harmful effects it would have
(ground 3); and
(4) whether he failed to
apply the “precautionary principle”, in particular by discounting evidence of
uncertainty over the possible effects of the development on human health and
assuming that the regulatory regime would operate effectively (grounds 4 and
5).
Issue (1) in the first appeal –
Policy CS5 of the minerals core strategy
7.
The development plan at the time of the Secretary of State’s decisions
comprised the minerals core strategy (adopted in February 2009), the minerals
local plan (adopted in September 2013) and the saved policies of the Fylde
Local Plan (adopted in 2003 and altered in 2005). It seems sensible to set out
the relevant policies together.
8.
Policy CS5 of the minerals core strategy is in section 6.5, under the
heading “Achieving Sustainable Minerals Production”. The relevant part of it
states:
“…
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.
.… ”.
9.
Policy DM2 of the minerals local plan, “Development Management”, states:
“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”.
The “Justification” for the
policy states, in paragraph 2.2.1, that “[minerals] and waste developments …
are essential for the nation’s prosperity, infrastructure and quality of life”,
but acknowledges that “they have the potential to cause disruption to local
communities and the environment due to the nature of their operations …”. It
says that “[these] impacts can often be addressed through the sensitive design
and operation of the facility”. Paragraph 2.2.3 says that “[a] balance needs to
be struck between the social, economic and environmental impacts of, and the
need for, the development”, and “[thus], if the adverse impacts of the operations
cannot be reduced to acceptable levels through careful working practices,
planning conditions or legal agreements, then the operation will not be
permitted”; and paragraph 2.2.4 that “[the] impact of a development can be
positive or negative; short, medium or long term; reversible or irreversible;
permanent or temporary”. Under the heading “Visual”, paragraph 2.2.8 says that
“[careful] consideration of the siting of the development, the method of
working and the layout and design of the site will be required to mitigate any
visual impact”. Paragraph 2.2.27 says that Policy DM2 “should be read within
the context of [minerals core strategy] Policies CS5, CS9 and Appendix F”.
10.
In a section of the Fylde Local Plan headed “Building Design and
Landscape Character”, Policy EP11 states:
“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.”
11.
Paragraph 109 of the NPPF appears in section 11, “Conserving and
enhancing the natural environment”, in the part headed “Delivering sustainable
development”. So far as is relevant here, it states:
“109. The
planning system should contribute to and enhance the natural and local
environment by:
·
protecting and enhancing valued landscapes, …
… .”
12.
In the final section of her report, under the heading “Overall
Conclusions – Landscape and Visual Impact [Preston New Road Exploration
Works]”, the inspector drew together her main conclusions on the effect that the
proposed development would be likely to have on the landscape:
“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.”
In paragraphs 12.151 and 12.152 she
turned to the part of Policy DM2 that concerns the effect of development on
“landscape character”, and then to Policy CS5:
“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.”
In paragraph 12.153 she addressed
the action group’s contention that the proposed development would conflict with
Policy EP11 of the Fylde Local Plan:
“12.153 [The
action group] 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. … .”
In paragraph 12.154, she stated
her conclusion on the likely effects of the development on a “valued”
landscape, in the context of the policy in paragraph 109 of the NPPF:
“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.”
As to “visual effects”, she
concluded in paragraph 12.155:
“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 in 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.”
She returned to Policy DM2 in
paragraph 12.156:
“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, [the action
group’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.”
Finally, in paragraph 12.157, she
stated her conclusions on landscape and visual impact, recalling the county
council’s relevant reasons for refusal:
“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.”
Those conclusions were repeated,
largely verbatim, in the inspector’s “Overall Conclusions”, in paragraphs
12.791 to 12.797, and, in substance, in paragraphs 12.821 to 12.828 –
culminating in her conclusion, in paragraph 12.828, that “there are no other
material considerations that indicate other than that the [Preston New Road
exploration works] should be permitted in accordance with the Development Plan,
subject to the imposition of appropriate planning conditions”.
13.
In his decision letter the Secretary of State said, in paragraph 4, that
“except where stated” he agreed with his inspector’s conclusions on all four
appeals. In paragraph 24 he said he agreed with the inspector, in paragraph
12.18 of her report, that “Policy DM2 is consistent with the NPPF and should be
given full weight, and … on its own it provides a sufficient basis to judge the
acceptability of the appeal proposals in principle”. He said in paragraph 50
that he had “given very careful consideration to the effect that the proposed
development [at Preston New Road] would have on the character and appearance of
the surrounding rural landscape and the visual amenities of local residents”.
In paragraph 51 he said he agreed with the inspector, in paragraph 12.85 of her
report, that “the landscape does have some value at local level”, that “the
appeal site displays a number of positive characteristics identified by the
Lancashire Landscape Strategy”, and that it is therefore “a ‘valued’ landscape
in NPPF terms”. In paragraph 52 he also agreed with the inspector 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”,
and 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 said (ibid.) that he had “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 …”. In paragraph 54 he said:
“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 also agreed, in paragraph 55,
that “any cumulative landscape and visual effects would be very limited and
would certainly not be of any significance”, and, in paragraph 56, that the
imposition of a condition limiting the height of the drilling rig to 36 metres was
appropriate. And he went on, in paragraph 57, to say this:
“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. … 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.”
Under the heading “Planning
balance and overall conclusions”, he concluded, in paragraph 66, that “the
proposal would be in accordance with the development plan taken as a whole”,
and, in paragraph 70, “that there are no material considerations indicating other
than that the [Preston New Road exploration works] development should be
permitted in accordance with the development plan, subject to the imposition of
appropriate planning conditions …”.
14.
The approach the court must take when dealing with an argument that a
planning decision-maker has misinterpreted or misapplied a planning policy
requires no explanation beyond what has recently been said by the Supreme Court
in Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37,
[2017] 1 WLR 1865 (see Lord Carnwath’s judgment, at paragraphs 22 to 26),
and by this court in Mansell v Tonbridge and Malling Borough Council
[2017] EWCA Civ 1314 (see my judgment, at paragraph 41). The court must
remember that planning policies should not be construed as if they were
provisions in a statute or a contract (see the judgment of Lord Reed in Tesco
Stores Ltd. v Dundee City Council [2012] PTSR 983, at paragraphs 17 to
22). Its role here is limited (see the judgment of Lord Carnwath in Suffolk
Coastal District Council, at paragraphs 21 to 25). It risks exceeding that
role if it neglects the basic distinction between discerning the meaning of a
planning policy – read in its “proper context” and with common sense – and
bringing public law principles to bear on the application of that policy in a
planning decision. It must not step too far in interpreting policies written
for planning decision-makers, in language intended to inform their exercise of
planning judgment, not for judges considering the lawfulness of a planning
decision when challenged.
15.
For the action group, Dr David Wolfe Q.C. submitted that both the
inspector and the Secretary of State misinterpreted and misapplied Policy CS5,
and that Dove J. was wrong not to accept that they did. The inspector had
concluded that the policy would be complied with because the harm to the landscape
would only be temporary. Dr Wolfe pointed out that the policy does not say that
it only concerns harm likely to be lasting or permanent, but not harm that is
likely to be only temporary. Nor, he submitted, can such a qualification be
implied. Any likely harm within the scope of the second, fourth and seventh
objectives stated in the policy, even if not harm to landscape of “historic
[or] cultural importance”, and whether it would be lasting or short-lived,
would be a breach of the policy. In principle, there was no reason why the
protection from harm afforded by the policy should be withheld if the harm,
perhaps serious, would last only a short time and then be removed or repaired.
The duration of harm to the landscape is one of the relevant factors in the
Guidelines for Landscape and Visual Impact Assessment methodology. In this
case, submitted Dr Wolfe, the harm would not be transient. It would last about
two and a half years while the exploration works were in place, and the site
would only be restored after that if the commercial production of shale gas did
not go ahead. This was, inevitably, a conflict with Policy CS5. The duration of
any harm to the landscape, whether long or short, is to be taken into account
under section 38(6) of the Planning and Compulsory Purchase Act 2004 as a
material consideration to be weighed against any conflict with Policy CS5. In
failing to acknowledge this breach of development plan policy, submitted Dr
Wolfe, the inspector and the Secretary of State neglected the statutory
imperative in section 38(6) – that the decision “must be made in accordance
with the development plan unless material considerations indicate otherwise”.
This was a clear error of law.
16.
That argument was rejected by Dove J.. He could not accept an
interpretation of Policy CS5 in which the policy is read as prohibiting any
harm to the landscape, including temporary harm. This was “a strategic policy
within a hierarchy of policies created by the development plan[,] … setting out
the strategic objectives to enable more detailed criteria to be developed for
land allocation and decision-taking”. It was “not designed or expressed for the
purpose of being applied in a literal manner in decision-taking without regard
… to other policies prepared pursuant to it to give detailed effect to the
objectives [it] sets out” (paragraph 84 of the judgment). Policy DM2 of the
minerals local plan was “the articulation of [Policy] CS5 at the level of
decision-taking … [,] obviously prepared, examined and adopted to give
expression to [it] at [that] level” (paragraph 85). The language of Policy DM2,
which contemplates “harm” being reduced to “acceptable levels” was “wholly
inconsistent” with the action group’s construction of Policy CS5. The Secretary
of State had not failed to discharge the decision-maker’s duty under section
38(6) (paragraph 86). Given that mineral development often entails the
restoration of the land once extraction is finished, it would be “surprising”,
said Dove J., “if the duration of the development, and the duration of any
harm, was irrelevant to the overall assessment of harm for the purpose of
[Policy CS5]” (paragraph 87). The inspector had “correctly interpreted and
applied” the policy in paragraphs 12.152 to 12.156 of her report, as had the
Secretary of State in paragraphs 50 to 57 of his decision letter (paragraph
88).
17.
I think those conclusions of the judge are sound, and I agree with them.
18.
As was submitted to us by Mr David Elvin Q.C. for the Secretary of State
and Ms Nathalie Lieven Q.C. for Cuadrilla, one must start with the purpose of
Policy CS5 and the context in which it sits. There are three things to say
about that. First, Policy CS5 is a policy specifically concerned, in part, with
the working of minerals. It is a truism that minerals can only be worked where
they are found, and, equally, that they can only be found where they lie (see
the judgment of Ouseley J. in Europa Oil and Gas Ltd. v Secretary of State
for Communities and Local Government [2013] EWHC 2643 (Admin), at paragraph
67, and the judgment of Stephen Richards L.J. in the appeal in that case
([2014] EWCA Civ 825, at paragraph 37)). The working of minerals will likely
alter the landscape during the extraction phase, but such effects will often be
reversed or repaired in the course of the site’s restoration. The same may also
be said of works required in the exploration for minerals. Secondly, the policy
is, both in its status and in its terms, a strategic policy, whose aim is
“Achieving Sustainable Minerals Production”. It looks to a further policy to
translate its objectives and requirements into “[criteria] … for considering …
proposals brought forward outside the plan-making process …” – applications for
planning permission for development on unallocated sites. That further policy
is Policy DM2 of the minerals local plan. These two policies should be read
together, taking the two elements of the development plan to which they belong
as a coherent whole (see the judgment of Lewison L.J. in R. (on the
application of TW Logistics Ltd.) v Tendring District Council [2013] EWCA Civ 9, at paragraph 18). Thirdly, therefore, to apply these two policies in
such a way as to create unnecessary tension or conflict between them would be
wrong. If a proposal is found to comply with Policy DM2 it is difficult to see
how it could nevertheless be found to be in conflict with Policy CS5.
19.
Even if one were to ignore Policy DM2 altogether – which, of course, one
cannot – it would still not be possible to read Policy CS5 as standing in the
way of every minerals development except those likely to cause no more than “de
minimis” harm before restoration is complete. That is not what the policy says,
and not what it means. The expressions “protected from harm”, “protect” and
“protected” in the policy are not to be read as foreclosing the exercise of
planning judgment. On the contrary, they require planning judgment to be
exercised, having regard to the particular facts and circumstances of the case
in hand. The broad concept of “harm” is not defined in Policy CS5. The policy
allows a planning judgment, in a particular case, that temporary effects on the
landscape – even if likely to last for several years before their remediation –
do not offend its objectives and do not constitute a conflict with it. The
duration of any such harm, and the likely effectiveness of the site’s
restoration, are not material considerations outside the policy. They are, as
Mr Elvin and Ms Lieven submitted, embraced within the policy itself. They go to
the exercise of planning judgment required under the policy.
20.
The connection between the two policies is not only plain from their
content. It is clear also from the reference to Policy CS5 in Policy DM2
itself, and from paragraph 2.2.27 of the supporting text. Upon the adoption of
the minerals local plan, Policy CS5 did not become irrelevant for the purposes
of development control decision-making. It contains concepts that bear on the
determination of planning applications and appeals. But Policy DM2 refined
those concepts into an approach to be adopted in decision-making, case by case,
and specific considerations to be taken into account in deciding whether a
particular proposal is acceptable or not. In describing that approach and in
specifying those considerations, it is clearly intended to be relevant to all
proposed “[developments] for minerals …”, including – as is common ground
between the parties here – exploration to establish whether a commercially
worthwhile mineral resource exists in a particular location.
21.
The county council did not specifically rely on Policy CS5 in refusing
planning permission for the proposed development. It did rely, however, on
Policy DM2. In paragraph 12.18 of her report the inspector said that she
“[concurred] with [the county council] that Policy DM2, on its own, provides a
sufficient basis to judge the acceptability of the appeal proposals, in
principle”, and that “[the] policy is consistent with the NPPF and should be
given full weight” – conclusions explicitly endorsed by the Secretary of State
in paragraph 24 of his decision letter. Nonetheless, the inspector did not put
Policy CS5 to one side. She tested the proposals’ acceptability against it, as
well as against Policy DM2. Her relevant conclusions, in paragraph 12.152 of
her report, were expressly endorsed by the Secretary of State in paragraph 57
of his decision letter.
22.
The inspector’s assessment in paragraphs 12.149 to 12.157 of her report,
adopted by the Secretary of State in paragraph 57 of his decision letter, was
faithful to the terms of both policies, properly construed in their context.
She made the planning judgments required by the policies. In doing so, she had
regard to the nature, extent and duration of the impacts the development would
have on the landscape, on landscape character and on visual amenity. She took
into account the mitigation and ultimate restoration proposed within the
project. And she clearly gave significant weight to the fact that the adverse
effects would largely be temporary. She concluded, in paragraph 12.152, that
the proposals were in accordance with Policy CS5, and, in paragraph 12.156,
that because the harmful landscape and visual impacts had been “reduced to an
acceptable level” they were not in conflict with Policy DM2. Her relevant
findings and conclusions are legally unassailable.
23.
The judge was, in my view, right to conclude as he did on this ground of
the action group’s challenge. The inspector and the Secretary of State did not
misdirect themselves in their handling of Policy CS5. They did not misinterpret
that policy, nor misapply it. In this respect, they discharged the section
38(6) duty lawfully. No relevant planning judgment was either neglected or
exercised unreasonably. Nor were the relevant reasons inadequate or unclear –
either in the inspector’s report or in the Secretary of State’s decision
letter.
Issue (2) in the first appeal –
Policy DM2 of the minerals local plan
24.
The action group’s argument here is, essentially, that the inspector and
the Secretary of State misunderstood or simply ignored the second part, or
“limb”, of Policy DM2, and failed to grapple with the question of whether the
proposed development would make a “positive contribution” of any relevant kind
– including a “positive contribution” to the “[residential] amenity of those
living nearby”. Dr Wolfe submitted that this was required by the policy. Before
Dove J. it was also argued that the inspector misapplied the policy when she
said, in paragraph 12.118 of her report, that “even on the basis of around 11
residential receptors being affected in this way, the total number … that would
experience a significant visual impact remains low”, and that the development
“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”.
25.
Dove J. did not find those submissions persuasive. He said it was
“obvious from the way in which [Policy DM2] 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” (paragraph 96 of his judgment). The second part of
the policy did “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 …”. The language of the
first part of the policy, said the judge, “clearly [called] for a planning
judgment as to what level of demonstrable harm would be acceptable”. The
inspector reached a conclusion on that question in paragraph 12.156 of her
report – that “the harm arising from visual impact associated with the
development had been reduced to an acceptable level”. In doing so, “she took
account of … the number of residential properties affected, the extent of the
impact and the duration of that impact”. The “formulation” she adopted in
paragraph 12.118 was “a rational approach to the question of the threshold of
acceptability” (paragraph 97). Her planning judgment here was “entirely lawful”
(paragraph 98).
26.
Like the judge, I cannot accept that the inspector and the Secretary of
State either misinterpreted Policy DM2 or failed to apply it lawfully, in
accordance with section 38(6).
27.
Policy DM2 does not withhold its support from proposals involving “…
environmental impacts that would cause demonstrable harm” if such harm cannot
be “eliminated”. It supports proposals in which harm is minimized. That is the
sense in which the first part of the policy countenances development whose
harmful impacts on the environment can be either “eliminated” or “reduced to
acceptable levels”. This will always be a matter of planning judgment for the
decision-maker. The policy also speaks of impacts being “controlled in
accordance with current best practice and recognised standards”, not of their
having to be avoided or removed or repaired altogether. The text in the
“Justification” for the policy – in particular, in paragraphs 2.2.3, 2.2.4 and
2.2.8 – is in similar terms. This approach clearly applies to all proposals to
which the policy relates, and to the whole range of their potential impacts on
the environment. As is implied by the words “account will be taken of the
proposal’s setting …”, those impacts include the effects a development is
likely to have on the landscape and, indeed, all its visual impacts.
28.
When Policy DM2 refers, in its second part, to Policy CS5, and says that
“developments will be supported … where it can be demonstrated to the
satisfaction of the mineral and waste planning authority … that the proposals
will, where appropriate, make a positive contribution” to the interests
referred to, it is again acknowledging the need for a decision-maker to
exercise planning judgment. In an appeal, planning judgment will be exercised
by an inspector and the Secretary of State. The concept of a “positive
contribution” is distinctly protean. The policy does not say what that
expression means. It provides examples of considerations relevant to the
decision-maker’s exercise of planning judgment when assessing whether a
proposal does promise a relevant “positive contribution”. But, crucially, it
does not require the refusal of planning permission for proposals that do not
hold in prospect a “positive contribution”, let alone a “positive contribution”
in the form of some specific planning benefit. That is not how the policy
works. This part of it is deliberately qualified by the important words “where
appropriate”. If, for whatever reason, it is not “appropriate” for a particular
proposal to make a “positive contribution” of some kind, the policy does not
rule out, or presume against, the grant of planning permission for it. If the
policy had purported to do that, it would have been contradicting itself,
because it would then, in effect, have been withdrawing its explicit support
for development whose “… environmental impacts that would cause demonstrable
harm can be … reduced to acceptable levels”. The policy must be read as a
whole. Read as a whole, it does not make a “positive contribution” a
prerequisite to compliance. The second part of it does not create an additional
requirement to the first.
29.
Dr Wolfe asked rhetorically what would be the purpose of the second part
of Policy DM2 if only the lower threshold for the policy’s support need be
surmounted – namely “demonstrable harm … reduced to acceptable levels”, in the
first part of the policy – and not also the higher threshold – namely “a
positive contribution”, in the second. The answer is twofold. First, the policy
explicitly qualifies the applicability of its second part, but not its first,
with the words “where appropriate”. It thus acknowledges that in some cases a
“positive contribution” will not be “appropriate”, and need not be sought or
required. Secondly, however, the second part of the policy has the effect of
encouraging a “positive contribution” to be made where that is “appropriate”,
and it assists developers and third parties by identifying the kinds of
“positive contribution” the county council has in mind. Both the first and the
second part of the policy have an obvious and different purpose. And the third
explains, with examples, how its objectives will be “achieved”.
30.
Whether, in a particular case, harm has been “reduced to acceptable
levels”, whether or not it is also “appropriate” to seek or require a “positive
contribution” from the developer, what that “positive contribution” may be –
whether, in particular, it should take the form or some planning benefit, and
whether the proposed development complies with Policy DM2 as a whole, are all,
quintessentially, matters of planning judgment for the planning
decision-maker.
31.
There is nothing in the inspector’s report or in the Secretary of
State’s decision letter to indicate, on their part, any misunderstanding or
misapplication of Policy DM2. In paragraph 1.156 of her report, for example,
the inspector said that “Policy DM2 sets out the principles that will govern
the management of development, and that applications will be supported where
any material, social, economic or environmental impacts that would cause
demonstrable harm can be eliminated or reduced to acceptable levels”, and also
that the policy “expresses support for applications which, for example, make a
positive contribution to … landscape character; … and sets out some ways in which
these goals can be achieved”. In my view it cannot sensibly be suggested that
she overlooked the second part of the policy or misdirected herself as to what
it means. Her conclusions in paragraphs 12.151, 12.152 and 12.156 faithfully
reflect the language and purpose of the policy. She did not ignore the second
part of it. On the contrary, in paragraph 12.151, she stressed the critical
words “where appropriate”, which appear in that part of the policy. She went
on, in the same paragraph, to acknowledge that in this particular case there
were “obvious limitations on what can be achieved in terms of design, layout
and appearance”. But she then, in paragraph 12.152, concluded that the scheme
incorporated measures that would “at least serve to conserve and protect Lancashire’s Landscape Character”. In the last two sentences of that paragraph she said
that “[although] there are landscape impacts that would cause demonstrable harm
which cannot be eliminated”, she was “satisfied that they have been reduced to
an acceptable level”, and that “[the] development would therefore be in
accordance with Policy DM2”. And in the final sentence of paragraph 12.156 she
said “[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”.
32.
Those conclusions must be read together with everything else the
inspector said in paragraphs 12.149 to 12.157. When that is done, their meaning
is unmistakeable: that in the inspector’s planning judgment – with which the
Secretary of State expressly agreed in paragraph 57 of his decision letter –
the proposals did not conflict with Policy DM2 taken as a whole, and not merely
that they complied only with the first part of the policy, disregarding the
second. The inspector did not fail to exercise any relevant planning judgment
called for by the policy, and the planning judgment she did exercise is legally
faultless. There is no error of law here.
33.
Finally, it seems to me to be a misreading of what the inspector said in
paragraph 12.118 of her report to take it as a softening of the requirement in
the first part of Policy DM2 for harmful impacts to be “reduced to acceptable
levels”. This was, as Dove J. concluded (in paragraph 97 of his judgment), a
legitimate and realistic application of that policy test, through the exercise
of planning judgment in the particular circumstances of this case – nothing
more and nothing less. Here too I agree.
34.
In my view, therefore, there is no basis on which the court could hold
that the Secretary of State erred in law in his conclusion that the proposed
development was “in accordance with the development plan taken as a whole”,
including, in particular, both Policy CS5 of the minerals core strategy and
Policy DM2 of the minerals local plan. That conclusion is not upset by any
misinterpretation or misapplication of relevant development plan policy, nor by
any unlawful planning judgment.
Issue (3) in the first appeal – paragraph 109 of the
NPPF
35.
In paragraph 12.81 of her report the inspector recorded the fact that
the appeal site at Preston New Road was “not within an area formally designated
for its natural scenic beauty or landscape qualities”, and that “[there] would
be no impact upon any designated landscape to which the NPPF, para 115,
requires great weight to be given”. She went on to say that “[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”. In paragraph 12.85 she said 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
she “[considered] that it is a ‘valued’ landscape in NPPF terms”. I have
already quoted her relevant conclusion, in paragraph 12.154, that “[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”. The Secretary of State
agreed, in paragraph 57 of his decision letter.
36.
Dr Wolfe’s argument here was similar to his submissions on the previous
issue. He submitted that the inspector and the Secretary of State adopted an
incorrect interpretation of the policy in the first bullet point in paragraph
109 of the NPPF. The use of the concept of harm in “the long-term” to modify
the simple and unqualified terms of the policy for the protection and
enhancement of “valued landscapes” in paragraph 109 was, he said, unjustified.
There was no such “temporal” restriction. Any harm to such a landscape, of
whatever duration, was necessarily a breach of the policy. Having concluded in
paragraph 12.154 of her report that there would be “an adverse impact” on a
locally “valued” landscape, the inspector ought to have concluded that the
proposals were in conflict with the policy. In not doing so, she erred in law.
37.
Dove J. rejected that argument. Having in mind Lord Clyde’s observations
on the wide, strategic purpose of national planning policy in his speech in R.
(on the application of Alconbury Developments Ltd.) v Secretary of State for
the Environment Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295
(at paragraph 140), he concluded that the policy for “protecting and enhancing
valued landscapes” in paragraph 109 of the NPPF was “to be … understood as a
high-order strategic objective of the planning system as a whole”, to be
achieved by means of “the planning policies which address the appraisal of
landscape impact in the context of particular kinds of development”. It was not
to be interpreted “as providing that any harm, including temporary harm other
than for a wholly insignificant or de minimis period, is a breach of
[it]”. It “calls for an overall assessment of harm to the landscape, including
short-term and any longer-term resolution of that harm and beneficial effects,
in order to reach a planning judgment … as to whether or not the valued
landscape has been protected and enhanced” (paragraph 92). The inspector had
“properly understood and interpreted” the policy in her conclusion in paragraph
12.154, and so had the Secretary of State in accepting that conclusion
(paragraph 94).
38.
Mr Elvin and Ms Lieven supported those conclusions of the judge; I think
rightly. In my view the inspector and the Secretary of State interpreted the
policy in paragraph 109 of the NPPF correctly, and applied it lawfully, as one
of the “material considerations” under section 38(6).
39.
Paragraph 109 of the NPPF is a broad statement of national planning
policy for the “natural and local environment”. The introductory words declare
what the “planning system” should do – that it “should contribute to and
enhance the natural and local environment”. The objective with which we are
concerned is also expressed in general terms – “protecting and enhancing valued
landscapes”. The means by which the planning system is to achieve that objective
are not stated. But the two ways in which it obviously might do so are
plan-making and the determination of planning applications and appeals in
accordance with the relevant provisions of the development plan (unless
material considerations indicate otherwise). As Lord Clyde said in Alconbury
(in paragraph 140 of his speech), “[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”. This seems to me a good description of the policy in paragraph
109 of the NPPF. Dove J. recognized this.
40.
In Lancashire, for minerals development, there are development plan
policies that do what the “planning system” is encouraged to do by paragraph
109. They are Policy CS5 of the minerals core strategy and Policy DM2 of the
minerals local plan. It is in those policies that the county council, as
mineral planning authority, has provided for the protection and enhancement of
the landscape in decision-making on proposals for minerals development,
including a landscape that is locally “valued”. If a scheme complies with those
policies, as the inspector and the Secretary of State concluded here, it is
difficult to see how it could be regarded as being in conflict with national
policy in paragraph 109.
41.
As Dove J. also recognized, the policy in paragraph 109 does not compel
a decision-maker to find conflict with it when the harmful effects of minerals
development on a “valued” landscape would, in the course of the project, be
reversed or mitigated. The policy is not framed in terms of preventing any harm
at all to such landscape. When applied in the making of a planning decision, it
requires from the decision-maker a planning judgment on the question of
whether, in the circumstances, the general policy objective of “protecting and
enhancing” such landscapes would be offended or not. It is for the
decision-maker to consider whether any temporary harm to the landscape would
breach the policy. The nature of the damage to the landscape, its duration, the
importance of the “valued” landscape, and the degree of formal protection it
has been given, if any, are likely to be relevant factors.
42.
In this case the relevant exercise of planning judgment is to be seen in
paragraph 12.154 of the inspector’s report. She acknowledged that “there would
be an adverse impact upon a ‘valued’ landscape”. But against this she weighed
three considerations: first, that the landscape in question was “valued only at
local level and does not have the highest status of protection”; second, “the
temporary nature of the development”; and third, “the mitigation and
restoration proposals”. Taken together, those three considerations were enough,
in her view, to justify the conclusion that “there would be no conflict in the
long-term with the aim of the NPPF to conserve and enhance the natural
environment”. Her use of the phrase “in the long-term” was appropriate. It was
not intended as a gloss on the policy in paragraph 109. It was simply to stress
that, as the inspector said, the development would be “temporary” and that
“mitigation” and “restoration” were part of the project. When tested against
the policy in paragraph 109, the proposals were, in her view, acceptable. This
was a planning judgment of the kind with which the court will rarely interfere.
There is no basis on which it could do so in this case.
Issue (4) in the first appeal –
Policy EP11 of the Fylde Local Plan
43.
In a statement of common ground prepared by the county council and
Cuadrilla before the inquiry, and published, under rule 14 of the Town and
Country Planning (Inquiries Procedure) (England) Rules 2000, Policy EP11 was
included in the list of development plan policies that the parties agreed “should
be taken into account in the determination of [the Preston New Road exploration
works] appeal” (paragraphs 6.1 and 6.6.4(B) of the statement of common ground).
At the inquiry, however, Cuadrilla’s planning witness, Mr Mark Smith,
maintained in his proof of evidence (at paragraph 8.24) that Policy EP11 was
not relevant to the proposed development. He was cross-examined on that
evidence by counsel for the county council, Mr Alan Evans, and by counsel for
the action group, Dr Ashley Bowes. The county council’s planning witness, Mrs
Katie Atkinson, was also cross-examined on this point by Ms Lieven, for
Cuadrilla. Submissions were made on it in closing, by Dr Bowes, by Mr Evans,
and by Ms Lieven. Cuadrilla’s position at that stage, as Ms Lieven explained in
her closing submissions, was that Policy EP11 was not a relevant policy.
44.
In paragraph 12.25 of her report, under the heading “The relevance of
the Fylde Borough Local Plan”, the inspector recorded Cuadrilla’s argument that
that the Fylde Local Plan “… does not purport to deal with minerals development
and has no relevance to this form of development”. She noted, however, that the
statements of common ground produced by Cuadrilla and the county council
“recognise the relevance to these appeals of policies in [the Fylde Local
Plan]…”. But she concluded, in paragraph 12.31:
“12.31 In
relation to Policy EP11, [Cuadrilla] claim that this is obviously a policy
aimed at built development and not an engineering operation such as shale gas
exploration. … [The county council] 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 minerals local plan]. Policy EP11 cannot sensibly be applied to
these schemes. …”.
That last conclusion – that
“Policy EP 11 cannot sensibly be applied to these schemes” – was repeated by
the inspector in paragraphs 12.153 and 12.823 of her report, which the
Secretary of State incorporated in his own reasons, respectively, in paragraphs
57 and 66 of his decision letter.
45.
The action group’s grievance, essentially, is that Cuadrilla changed
their position on the relevance of Policy EP11 during the inquiry, that this
had not been made clear before Ms Lieven closed their case, and was never the
subject of an appropriate amendment to the statement of common ground; that its
own case before the inspector had been based on the contention that the policy
was relevant and was breached; that its closing submissions had been presented
on the understanding that Cuadrilla conceded the relevance of
the policy; that it was never given an opportunity, either by the inspector or
by the Secretary of State, to make representations in the light of Cuadrilla’s
alleged volte-face; and that this was unfair and prejudicial to it, and enough
to vitiate the Secretary of State’s decisions.
46.
Dove J. rejected that argument. Dr Wolfe submitted to us that he was
wrong to do so.
47.
The judge reminded himself of relevant case law illustrating the
principles of procedural fairness when applied in planning appeals – in
particular, the decisions of this court in Hopkins Developments Ltd. v
Secretary of State for Communities and Local Government [2014] EWCA Civ 470,
[2014] PTSR 1145 and Secretary of State for Communities and Local
Government v Engbers [2016] EWCA Civ 1183. He saw a distinction between
cases in which an inspector differs from an agreed position reached between the
parties and recorded in a statement of common ground, and a case such as this,
in which one of the parties itself departs from a previously agreed position
(paragraph 104 of his judgment). He concentrated on Beatson L.J.’s observations
in Hopkins Developments Ltd. about the “right to be heard” as a
principle of natural justice – in particular (at paragraph 87), that “what is
required is an opportunity to be heard, an opportunity to participate in the
procedure by which the decision is made”, and (at paragraph 90) that, as the
authorities referred to by Jackson L.J. had shown, “what is needed is knowledge
of the issues in fact before the decision-maker … , and an opportunity to
adduce evidence and make submissions on those issues”. In Dove J.’s view,
therefore, it was “necessary to examine whether, notwithstanding the terms of
[the statement of common ground, the action group] 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” (paragraph 109).
48.
Dove J. focused on Mr Smith’s cross-examination by Dr Bowes, which he
had quoted earlier in his judgment (in paragraph 34). In the course of that
cross-examination Mr Smith accepted that, on a “[strict] interpretation” of
Policy EP11, “a development that was not in keeping with the landscape
character types identified in the Landscape Strategy for Lancashire would
conflict with [it]”. But he then said that, “as [he had] explained in
[cross-examination] from Mr Evans, that policy is principally directed toward
new permanent build development not minerals …”, and added that he “[did] not
think this policy really gave any consideration to those temporary forms of
development such as minerals”. In answer to a further question from Dr Bowes,
he acknowledged that Policy EP11 was “in the statement of common ground” as one
of the “policies … relevant to consideration of the exploration application”.
49.
That exchange showed, said the judge, that there was “clearly an issue
as to the relevance and applicability of [Policy] EP11”. The action group had
taken the “opportunity to provide evidence and submissions on that issue”. It
had done so “in pointing out to the [inspector] in [its] closing submissions
that [Policy] EP11 was contained within the [statement of common ground], and
also that Mr Smith had accepted a conflict with that policy”. As Dove J. said, Dr
Bowes “properly and effectively took up the points in this regard with
[Cuadrilla’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” (paragraph 110 of the judgment). The relevant submissions made by
Dr Bowes in closing, which the judge had also quoted (in paragraph 35), had
referred to the fact that Policy EP11 had been included in the list of
“policies … engaged by the appeal scheme” in the statement of common ground
(paragraph 5 of Dr Bowes’ closing submissions), reminded the inspector that “Mr
Smith accepted in [cross-examination] that a conflict with [the Landscape
Strategy for Lancashire] must … amount to a conflict with … [Policy] EP11”
(paragraph 19), contended that “[the] proposal … , by definition, conflicts
with the development plan policies adopted to promote that Strategy”, and
confirmed that “[accordingly], we say there [is] 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)” (paragraph 29).
50.
In these circumstances, the judge found himself “unable … to conclude
that there was any procedural unfairness in what occurred during … the
inquiry”. The action group had “participated in [the] debate” on the
applicability of Policy EP11. Cuadrilla’s position, as put to the inspector in
their closing submissions, had been “clearly foreshadowed in their evidence and
indeed challenged in that respect by [the action group’s] counsel”. The inquiry
had been attended by representatives of the action group throughout, and the
proceedings transmitted live on a webcast. But in any event the judge was
“satisfied that there was no unfairness to [the action group] in the respect
alleged …” (paragraph 111). He was “unimpressed” by the suggestion that it
could have sought to make further submissions to the Secretary of State after
the inquiry had been closed, in response to those made for Cuadrilla. Whether
or not the Secretary of State would have disregarded such submissions, as he
had a discretion to do under rule 17(4) of the inquiries procedure rules, was
“moot” (paragraph 112).
51.
I am in no doubt that the judge’s approach here was correct, and I do
not think his conclusion could realistically have been any different.
52.
At the inquiry there plainly was an issue between Cuadrilla, on one
side, and the county council and the action group, on the other, as to the
relevance and applicability of Policy EP11 to these proposals. The inspector
grasped that issue. She dealt with it under a specific heading in her
conclusions, and resolved it, in paragraphs 12.31 and 12.153 of her report, in
favour of Cuadrilla. She accepted their contention that Policy EP11 was not
relevant to proposals for hydrocarbon exploration, and that it “cannot sensibly
be applied to these schemes”. That conclusion was adopted by the Secretary of
State. It has not been questioned in these proceedings. And it is legally
secure.
53.
The critical question, however, is not whether the relevance of Policy
EP11 was a live issue at the inquiry. It is whether the action group had a fair
opportunity, in the course of the inquiry, to address that issue. The judge
concluded that the action group did have that opportunity, and that neither the
inspector nor the Secretary of State breached any principle of procedural
fairness in not inviting further submissions from it after the inquiry had
closed. That conclusion was consistent with the relevant legal principles,
illuminated by Beatson L.J. in Hopkins Developments Ltd. (at paragraphs
84 to 90).
54.
The fact that Dr Bowes took the opportunity to cross-examine Mr Smith as
he did on the relevance and effect of Policy EP11 shows that the action group
saw this as a matter that it should tackle in this way. The questions put to Mr
Smith on Policy EP11 were perfectly proper questions, designed to establish his
position on the relevance and effect of the policy, and the submissions made by
Dr Bowes in closing, in the light of Mr Smith’s evidence on the point, were
perfectly proper submissions. Mr Evans’ submissions for the county council were
to similar effect. He too recognized the need to address the relevance of
Policy EP11 as a controversial matter. But Mr Smith’s answers in
cross-examination – including that he “[did] not think [Policy EP11] really
gave any consideration to those temporary forms of development such as
minerals” – did not constrain Ms Lieven in submitting as she did in closing on
behalf of Cuadrilla. Nor was the inspector compelled to accept Mr Smith’s
evidence, or the evidence of any other witness, on the relevance and effect of
Policy EP11, or the submissions made on this issue by counsel for any of the
parties. She had to make up her own mind on these matters, and so did the
Secretary of State. Ultimately, the correct interpretation of Policy EP11, had
it been controversial in these proceedings, would have been a matter for the
court. But lest there be any doubt about that, I should say that in my view the
policy was neither incorrectly understood nor unlawfully applied. The
inspector’s conclusions in paragraphs 12.31 and 12.153, on which the Secretary
of State depended in his own conclusions in paragraph 57 of the decision
letter, are, in my view, unimpeachable.
55.
As the judge recognized, the question here was whether the action group
had “an opportunity to participate in the procedure by which the decision [was]
made”. It manifestly did. It exercised its “opportunity to participate” in the
inquiry process as it chose, with the benefit of advice and representation by
experienced planning counsel. It was able to tackle the relevance of Policy
EP11 as an issue before the inspector and Secretary of State, and to do so
effectively in the course of the inquiry. A fair procedure did not require it
to be given a different opportunity to do that, or a renewed opportunity after
the inquiry was closed. The opportunity it had was ample. The procedure was, at
every stage, fair. Dr Bowes was not present at the inquiry throughout, though
it seems that members of the action group were there when he was not, and the
proceedings were broadcast. He was able to cross-examine Cuadrilla’s witnesses,
including Mr Smith, and at the end of the inquiry to make closing submissions –
though not to go last, which was Cuadrilla’s right as appellant. The essential
requirements of a fair procedure were, in the circumstances, wholly fulfilled.
56.
In my view, therefore, the appeal must fail on this ground too.
Issues (1), (2) and (3) in the
second appeal – the lawfulness of the assessment under the regime for EIA and
alleged inconsistency in the Secretary of State’s approach
57.
These three issues relate closely to each other and are best dealt with
together.
58.
Recital (2) to the EIA Directive states that “[pursuant] to Article 191 of
the Treaty on the Functioning of the European Union, Union policy on the
environment is based on the precautionary principle …”, and that “[effects] on
the environment should be taken into account at the earliest possible stage …”.
Article 3(1) requires assessment of “the direct and indirect significant
effects of a project …”. Paragraph 5 of Annex IV states that “… [the]
description of the likely significant effects on the factors specified in
Article 3(1) should cover the direct effects and any indirect, secondary,
cumulative, transboundary, short-term, medium-term and long-term, permanent and
temporary, positive and negative effects of the project …”. The corresponding
provision in paragraph 4 of Part 1 of Schedule 4 to the Town and Country
Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA
regulations”), is in materially the same terms. The definition of an
“environment statement” in regulation 2 of the EIA regulations is a statement
“… that 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
and which the applicant can, having regard in particular to current knowledge
and methods of assessment, reasonably be required to compile”.
59.
For Mr Frackman, Mr Marc Willers Q.C. made three main submissions on
these issues. The first was that the Secretary of State had neglected the
relevant principles applied by the Court of Justice of the European Union in
cases where, under the regime for EIA, a decision-maker has had to consider
“indirect, secondary [or] cumulative effects” on the environment. In
particular, he had failed to require an assessment that included both the
direct impacts on the environment of the extended flow testing phase of the proposed
development and the indirect impacts of the succeeding production stage if the
exploration phase proved the existence of a viable resource of shale gas.
Exploration was only being carried out “with a view to production”. Production
was “reasonably foreseeable”, and was the “end product of exploration”. That,
in essence, is the argument on issue (1). Mr Willers sought to rely here on the
decisions in Abraham v Region Wallonne (Case C-2/07) [2008] ECR I-1197 and Ecologistas v Ayuntamiento de Madrid (Case C-142/07)
[2009] PTSR 458 and decisions of the domestic courts to similar effect, among them
the Court of Appeal’s decision in R. (on the application of Brown) v
Carlisle City Council [2011] Env LR 5 and the first instance decision in
R. (on the application of Khan) v Sutton London Borough Council [2014] EWHC 3663 (Admin). Secondly, he submitted, the judge erred in rejecting the
argument that the Secretary of State had acted contrary to the EIA Directive
and the EIA regulations by failing to ensure that environmental effects were
taken into account and assessed “at the earliest possible stage” (see the
decisions of the Court of Justice of the European Union in R. (on the
application of Wells) v Secretary of State for Transport, Local Government and
the Regions (Case C-201/02) [2004] Env LR 27, at paragraphs 51 to 53,
and 62, and Brussels Hoofdstedelijk Gewest v Vlaams Gewest (Case
C-275/09) [2011] Env LR 26, at paragraph 33). That is the argument on issue
(2). And thirdly, Mr Willers submitted, the Secretary of State’s approach was
inconsistent in that he had taken into account the benefits of the production
of shale gas without weighing against those benefits the harmful environmental
impacts of production. That is the argument on issue (3).
60.
Dove J. rejected Mr Willers’ argument on “indirect, secondary [and]
cumulative” effects. He identified the legal principles in play and relevant
European and domestic case law, including Abraham, Ecologistas, Brown
v Carlisle City Council and R. (on the application of Frack Free
Ryedale) v North Yorkshire County Council and another [2016] EWHC 3303 (Admin). In his 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”. The proposal before the
Secretary of State “had to be addressed on its own terms”. It was “strictly
limited in time and solely for the purpose of exploration of the potential gas
resource” (paragraph 126 of the judgment). And “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 … under section 70 of the 1990
Act, or alternatively … for a change of the conditions on the present consent
under section 73 …”. Either way, “a new [environmental statement] would have to
be prepared describing the likely significant effects of that further application”.
There were “no indirect, secondary or cumulative effects to be evaluated in the
present [environmental statement]”, which was “therefore legally adequate”
(paragraph 127).
61.
In the judge’s view there was a parallel between this case and Frack
Free Ryedale. In that case the gas produced by the proposed works was to be
burned at Knapton generating station under an existing planning permission, and
within the existing limits permitted by the Environment Agency. The proposal
involved no net increase in capacity. An argument that it was an integral part
of a more substantial project, including Knapton generating station, was held
to have been rightly abandoned (see paragraph 39 of the judgment of Lang J. in
that case). Here, as Dove J. said, “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 [appeal] 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 was, he said, a “perfectly sensible
assumption” on the evidence before the Secretary of State “that any gas
provided to the grid during the extended flow phase [would] simply replace gas
that would otherwise be consumed by residential and industrial users supplied
by the grid …”. There were thus “no indirect, secondary or cumulative [effects]
of the kind suggested arising from the exploration phase which required
inclusion within the [environmental statement]”. A “clear distinction” was to
be drawn between, on the one hand, the production of gas during the “extended
flow phase when the wells would be connected to the grid” and, on the other,
“the flaring which would occur during the initial flow testing phase”. That
flaring would “plainly [give] rise to the burning of gas and generation of
greenhouse gases that would not otherwise arise” and was “therefore … properly
the subject of assessment within the [environmental statement]” (paragraph
128).
62.
The judge concluded, therefore, that the approach indicated by the
Government’s guidance in paragraph 27-120-20140306 of the Planning Practice
Guidance: Minerals published by the Government in March 2014 (“the PPG”) was
correct and in accordance with the requirements of the EIA Directive and the
EIA regulations. As that guidance makes plain, the judge said, proposals for
exploration should be considered on their own merits “without speculation or hypothetical
assumptions in relation to future activities which will require their own
consenting and EIA processes” (paragraph 129).
63.
In my view the judge’s approach and conclusions were correct. As Mr
Elvin and Ms Lieven submitted, the court must focus on the nature of the
consent procedure for the project under consideration. The crucial point here
is that the scheme before the Secretary of State was a single, clearly defined
project limited to exploration for shale gas on the two sites, and the associated
monitoring. And the consent procedure for it was not a “multi-stage consent
process” (see paragraphs 21 to 25 of Lord Hope’s speech in R. (on the
application of Barker) v Bromley London Borough Council [2007] 1 AC 470,
which concerned an outline planning permission for major development at Crystal
Palace and the subsequent reserved matters approvals required; and paragraphs
32 and 33 of the judgment in Brussels Hoofdstedelijk Gewest, which
concerned successive works of development at Brussels Airport). The consent
procedure here was confined to the approval or rejection of the present
proposals for exploration and monitoring. The project did not include any
subsequent commercial production. That would be the subject of a second,
distinct and different project – if, but only if, the exploration project
proved the existence of a viable resource of gas. The granting of planning
permission for the exploration and monitoring works did not, and could not,
pre-empt or pre-judge the determination of that future application, if it were
ever to be made. That possible future proposal would have to be considered on
its own planning merits when the time came, in the light of the assessment
contained in its own environmental statement. The purpose, and sole purpose, of
the present project was to establish whether or not shale gas existed in a
sufficient quantity and was capable, both technically and viably, of being
extracted should planning permission later be granted for its extraction. If
the appeals before the Secretary of State succeeded, and planning permission
for the proposals before him were granted, there would not be any approval for
the commercial extraction of gas. The effects of such an operation were,
therefore, neither direct effects of the project under consideration nor
“indirect, secondary [or] cumulative” effects of it.
64.
As the Government has recognized in the written ministerial statement
issued by the Secretary of State for Energy and Climate Change on 16 September
2015, “[we] do not yet know the full scale of the UK’s shale resources nor how
much can be extracted technically or economically”. That, of course, is a
statement of the national position. But, as Mr Elvin and Ms Lieven submitted,
the scale of resources present in particular locations and the technical and
economic feasibility of extraction in those locations are also uncertain. That
was so here: hence the need for exploration. What any future extraction project
might comprise was also, at this stage, a matter of conjecture. So it was not only
unnecessary, and inappropriate, for the environmental effects of that unknown
development to be included in the EIA for the present project. It was also
impossible.
65.
That logic is not disturbed by Mr Willers’ submission that the purpose
of the exploration project was not merely to establish the presence of a
commercial resource of shale gas, but also to enable commercial extraction. The
fact that commercial extraction would only be proposed if the exploration
project proved the presence of a commercial resource does not mean that the two
operations are necessarily and indivisibly parts of the same project. They are
not. Extraction, if it is ever proposed, will only proceed after exploration
and monitoring have been carried out. But this does not justify the concept
that the two projects, if there are two, will have “cumulative” effects on the
environment, or that the present project – for exploration – will have
“indirect” or “secondary” effects that are, in truth, impacts associated only
with a hypothetical future project – for extraction.
66.
As the judge concluded, this straightforward analysis accords not only
with common sense, but also with the Government’s guidance in paragraph
27-120-20140306 of the PPG, under the heading “Should mineral planning authorities
take account of the environmental effects of the production phase of
hydrocarbon extraction at the exploration phase?”. The guidance emphasizes that
“[individual] applications for the exploratory phase should be considered on
their own merits” and “should not take account of hypothetical future
activities, for which planning consent has not yet been sought, since the
further appraisal and production phases will be the subject of separate
planning applications and assessments”. It also acknowledges that “[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”.
67.
A principle well established in both European and domestic authority is
that the existence and nature of “indirect”, “secondary” or “cumulative”
effects will always depend on the particular facts and circumstances of the
project under consideration (see Sullivan L.J.’s judgment in Brown v
Carlisle City Council, at paragraph 21, and Laws L.J.’s judgment in Bowen-West
v Secretary of State for Communities and Local Government [2012] Env LR 22, at paragraph 28). An equally robust principle is that an environmental
statement is not expected to include more information than is reasonably
required to assess the likely significant environmental effects of the
development proposed, in the light of current knowledge (see, for example, the
judgment of Patterson J. in Khan, at paragraphs 121 to 134).
68.
Dove J.’s conclusions on “indirect, secondary [and] cumulative” effects
are entirely loyal to both of those principles. On the facts, in contrast with
cases such as Brown v Carlisle City Council, the exploration and
monitoring project under consideration here was a free-standing project of
development, which did not depend on any other project, present or future,
including any future proposals for the commercial extraction of shale gas. That
is a material difference between this case and Brown v Carlisle City Council,
where an environmental statement for the development of a freight distribution
centre at an airport had not included an assessment of the effects of the
associated improvements to the airport itself, which were part of the same
project though the subject of a separate application for planning permission
(see paragraphs 29 and 30 of Sullivan J.’s judgment). In this case, the
environmental statement for the project under consideration was a comprehensive
environmental statement for that whole project, undertaken on the basis of what
was known at the time, and without speculation as to the content and timing of
some other future project, which might never happen. However broad a
construction is placed on the expression “the direct and indirect significant
effects of a project …” in article 3(1) of the EIA Directive, and the
expression “any indirect, secondary, cumulative … effects of the project” in
paragraph 5 of Annex IV, these concepts cannot be stretched to include effects
that are not effects of the project at all (see paragraph 31 of Advocate
General Kokott’s Opinion in Abraham).
69.
I do not see how Mr Willers’ argument can gain any strength from
European or domestic authority on EIA flawed by the splitting of projects into
their constituent phases or parts – sometimes referred to as “salami slicing”.
The two decisions of the Court of Justice of the European Union most familiar
in this context are Abraham and Ecologistas. The defect of the
EIA in Abraham was that only the works of improvement to the
infrastructure of the airport had been assessed, and the increased numbers of
flights that would be enabled by those improvements had not (see paragraphs 26
and 42 to 46 of the court’s judgment). The defect in Ecologistas was
that the works for improving the Madrid urban ring road had been assessed
separately, as a number of individual projects, rather than overall, as a
composite whole (see paragraphs 34 to 39 and 44 to 46 of the court’s judgment).
This case is quite different from those. In this case there is no question of
the purpose of the EIA Directive being circumvented by splitting into separate
parts or phases what is truly a single project. The assessment here was of the
whole project, not merely parts of it.
70.
The Non-Technical Summary of Cuadrilla’s environmental statement
explains, in subsection 3.4.5, “Extended Flow Testing”, that “[if] the flow of
gas from the wells is assessed as being sufficient a period of extended flow
testing may be undertaken”, which “could last for 18 to 24 months per well”;
and that “[natural] gas produced during extended flow testing … would not be
burned in the flare stacks”, but “… the well would be connected to the gas grid
for use in homes or by business or industrial users”. The assessment in chapter
8 of the environmental statement, “Greenhouse Gas Emissions”, embraces the full
range of greenhouse gas emissions associated with the project. Paragraph 2 in
that chapter states that “[both] direct and indirect GHG emissions have been
assessed”. Paragraph 3, in section 8.3, “Scoping and Consultation” confirms
that “the assessment has taken into account the Scoping Opinion from [the
county council] … and stakeholders”, including Natural England, CPRE
Lancashire, the Environment Agency and Public Health England. The “GHG
emissions by source (ranged result in tCO2e)” are set out in Table
8.3, in section 8.7, “Assessment”. Paragraph 36 refers to Figure 8.3,
“Percentage GHG emissions by source for the entire Project”, which “shows the
range of GHG emissions by emission source for all of the activities associated
with the Project”. It states that “[approximately] 70% of the Project
greenhouse gas emissions can be attributed to flaring [i.e. the burning of gas
in the flare stacks during the initial flow testing stage], which will be
captured under the EU ETS”; that “[with] the embedded mitigation measures …
proposed[,] fugitive gas emissions from the Site are expected to consist of
un-combusted methane as a result of incomplete combustion in the flare,
accounting for 13% of the total emissions”; and that “[the] embedded mitigation
measures proposed are known to achieve an estimated reduction in fugitive
emissions of 97%-98%”. Paragraph 37 refers to Figure 8.4, “GHG emissions by
Project stage …”. It confirms that “[initial] flow testing is the most
significant contributor due to flaring, accounting for approximately 87% of the
Project carbon footprint”. In the pie chart in Figure 8.4 the percentage of greenhouse
gas emissions attributable to the extended flow testing phase is only 0.1104%.
The “Chapter Summary – Greenhouse Gas Emissions” states:
“…
The greatest source (73%) of the
project GHG emissions come from burning the gas in the flare. The total Project
GHG emissions could be between 118,418 (lower range) to 124,397 (higher range)
tCO2e. The higher range is the equivalent of 0.002% of the current
UK Carbon Budget set by the government and as such the Project’s potential
contribution to national GHG emissions is negligible. Furthermore, due to the
conservative nature of the assessment there is potential for the actual GHG
emissions to be even smaller.”
71.
There is, it seems to me, no force in Mr Willers’ submission that the
environmental statement was inadequate because it lacked an assessment of the
effects of greenhouse gas emissions arising from the extended flow testing
phase of the project – a point not raised before the inspector, and which
emerged only in these proceedings. Because the extended flow testing phase
would last some three years, Mr Willers described it as “production by any
other name”. In my view, however, the judge’s conclusions on this argument in
paragraph 128 of the judgment are plainly correct. There was no defect in the
assessment in the environmental statement. Greenhouse gas emissions associated
with exploration, including the extended flow testing phase, were fully
assessed.
72.
Gas produced during that phase, when piped into the grid, would merge
with existing supplies to consumers. It would be an indistinguishable part of
the existing supply, not additional to that supply. It would not, therefore,
lead to an increase in greenhouse gas emissions (see the analogous conclusions
in Lang J.’s judgment in Frack Free Ryedale, at paragraphs 37 to 39). As
Ms Lieven emphasized, there was no evidence before the inspector and the
Secretary of State to support a different conclusion. The idea that, in a
project of exploration for shale gas such as this, as opposed to the commercial
production of shale gas, the substitution of new gas for existing gas in the
grid will raise the total consumption of gas by increasing gas usage, that
significant additional greenhouse gas emissions are thus likely, and that there
might be some conflict with the objectives of the Climate Change Act 2008,
gains no credence in the report of the Committee on Climate Change, “Onshore
Petroleum: The compatibility of onshore petroleum with meeting the UK’s carbon
budgets”, published in March 2016, or in the Government’s response, published
in July 2016. As Mr Elvin and Ms Lieven submitted, the passages in the report
on which Mr Willers relied do not serve to demonstrate that such consequences
are likely. In Chapter 4, “Emissions relating to onshore petroleum extraction”,
the report states that “[exploration] emissions are generally small …”, that
“[small] volumes of gas may be generated during the development of the well,
most of which is likely, at a minimum, to be burned in a flare”, that “[it]
should not be taken as a given that emissions from exploration will be low,
especially for any extended well tests”, and that “[appropriate] mitigation
techniques should be employed where practical”. Such statements do not
undermine the integrity of the EIA undertaken for this project. They do not
show that the burning of shale gas from the extended flow testing phase here
would be likely to increase greenhouse gas emissions to any significant degree.
The environmental statement effectively concludes to the contrary. It is not
necessary to go as far as Mr Elvin said we could, and to accept, in the light
of the Committee on Climate Change report, that domestically produced gas may
in fact generate a lower level of greenhouse emissions than imported liquefied
natural gas. It is enough for us to conclude, as in my view we can, that there
is nothing before the court by way of evidence specific to this project of
shale gas exploration to substantiate the shortcomings in the EIA asserted by
Mr Willers.
73.
In short, there is no evidence, let alone clear evidence, of any likely
material increase in greenhouse gas emissions, or any other likely significant
effect on the environment, that ought to have been addressed in the EIA but was
not. In the circumstances, I cannot see how the court, adopting the
conventional public law approach well settled in the relevant authorities,
could find itself satisfied that the Secretary of State committed an error of
law in accepting the assessment presented in Cuadrilla’s environmental
statement (see Laws L.J.’s judgment in Bowen-West, at paragraphs 36 to
42, citing the judgment of Sullivan J., as he then was, in R. (on the
application of Blewett) v Derbyshire County Council [2004] Env LR 29, at
paragraphs 32 and 33; and Lang J.’s judgment in Frack Free Ryedale, at
paragraphs 21 to 23). Neither is there any demonstrable legal flaw within the
assessment contained in the environmental statement, nor is the assessment
demonstrably incomplete. The Secretary of State was entitled to regard the
environmental statement as compliant with the definition in the EIA
regulations, which looks to what an applicant may “reasonably” be required to
provide. The judge’s analysis was right.
74.
It follows, in my view, that the second appeal cannot succeed on Mr
Willers’ main argument, on “indirect, secondary [or] cumulative” effects –
issue (1). His submissions on the timing of assessment – issue (2), and on the
alleged inconsistency in the Secretary of State’s approach – issue (3), can be
dealt with quite shortly.
75.
The argument on the timing of assessment is, I think, misconceived. It
fails on the same analysis as the argument on “indirect, secondary [or]
cumulative” effects. The judge reminded himself of the European and domestic
jurisprudence on EIA emphasizing the need for projects to be assessed in their
entirety, rather than in partial or piecemeal fashion. It cannot sensibly be
suggested that he overlooked a basic principle inherent in the need for a
complete assessment: that such assessment must be timely – undertaken “at the earliest
possible stage”. These principles are not divorced from each other; they go
together. Assessment must be complete. And to be complete, it must be timely.
If a future project is truly separate from the project under consideration, the
assessment of its likely significant effects in the environmental statement for
the present project is both unnecessary and inappropriate. If it is also
uncertain in its conception and content, an attempt to assess its effects in
the environmental statement for the present project would also be futile and
potentially misleading. Such an exercise would not be timely; it would be
premature and untimely. One comes back then to the same basic point. If, in the
future, a project emerges for the commercial production of shale gas on these
two sites, it can only properly be the subject of assessment under the regime
for EIA when it comes to be promoted as a real, not merely hypothetical,
proposal in an application for planning permission (see the conclusions to
similar effect in the judgment of Sir Michael Harrison in R. (on the
application of Littlewood) v Bassetlaw District Council [2009] Env LR 21, at paragraph 32).
76.
Mr Willers’ argument alleging inconsistency in the Secretary of State’s
consideration of the possible future production of shale gas at the appeal
sites is also, in my view, mistaken. Its premise is wrong. The proposition that
the Secretary of State took into account the potential benefits of shale gas
production, but not the harm it would cause to the environment, does not
reflect his relevant conclusions.
77.
In a section of the NPPF headed “Meeting the challenge of climate
change, flooding and coastal change”, paragraph 93 says that “[planning] plays
a key role in helping shape places to secure radical reductions in greenhouse
gas emissions, minimising vulnerability and providing resilience to the impacts
of climate change, and supporting the delivery of renewable and low carbon
energy and associated infrastructure”. In a subsequent section headed
“Facilitating the sustainable use of minerals”, paragraph 147 says that, among
other things, mineral planning authorities “should … when planning for on-shore
oil and gas development, including unconventional hydrocarbons, clearly
distinguish between the three phases of development (exploration, appraisal and
production) …”.
78.
In paragraph 1.181 of her report, when summarizing relevant NPPF policy,
the inspector noted the policies in paragraphs 142 to 148, including the
requirement that “decision makers should recognise a distinction between
exploration, appraisal and production in the extraction of gas, including
unconventional hydrocarbons”. In paragraph 12.686, under the heading
“Conclusions on Climate Change”, she concluded that “the projects would be
consistent with the NPPF aim to support the transition to a low carbon future
in a changing climate”. She did “not consider that [paragraph 93 of the NPPF]
should be read in isolation, or applied out of context”. Taking an “overall
view of national policy”, she was in “no doubt that shale gas is seen as being
compatible with the aim to reduce [greenhouse gases] by assisting in the
transition process over the longer term to a low carbon economy”. And she was
“satisfied that [Cuadrilla] have demonstrated … 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”. The proposed development would
be in accordance with Policy DM2 of the minerals local plan and “relevant
national policy.” In paragraph 12.757, under the heading “Economic benefits”,
she said:
“12.757 I
acknowledge that the [written ministerial statement of 16 September 2015] does
make reference to the substantial benefits that exploring and developing our
shale gas and oil resources could potentially bring. However, it seems to me
that, in the light of the NPPF and [the PPG] guidance, the potential wider
economic benefits of shale gas production at scale should be given very limited
weight at this stage. … .”
In her “Overall conclusions”, in
paragraph 12.826, she said that “[any] future proposal for production would
require a further application and assessment” and “… little weight is
attributed to the wider economic benefits that might be derived from shale gas
production on a large scale”. And in paragraph 12.840, when dealing with the
proposed monitoring works at Preston New Road, she acknowledged that “account
should not be taken of hypothetical future activities relating to shale gas
production over the wider area”.
79.
The Secretary of State concluded, in paragraph 28 of his decision letter
that, in the light of the written ministerial statement of September 2015, “the
need for shale gas exploration is a material consideration of great weight in
these appeals …”. In paragraphs 36 and 37, under the heading “Climate change”,
he said:
“36. The
Secretary of State considers that the need for shale gas exploration set out in
the [written ministerial statement] reflects … the Government’s objectives in
the [written ministerial statement], in that it could help to achieve lower
carbon emissions and help meet its climate change target. …
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 [Cuadrilla]
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 [Policy DM2 of the minerals local plan]
and relevant national policy.”
and in paragraph 47, under the
heading “Economic benefits”:
“47. For
the reasons given in IR12.749-12.769 and IR12.818, the Secretary of State
agrees with the Inspector at IR12.769 that the local economic benefits of the
exploration stage would be modest. He attributes little positive weight to
these benefits. The Secretary of State notes that the Inspector considers
little weight should be attributed to the national economic benefits which
could flow from commercial production at scale at some point in the future, in
the context of the exploratory works development which is the subject of these
appeals. As the NPPF makes clear that each stage should be considered separately,
the Secretary of State considers that in the context of these appeals, no
weight should be attributed to the national economic benefits which could flow
from commercial production in relation to these sites at scale at some point in
the future.”
80.
As always, one must read the relevant passages in the inspector’s
report, and the corresponding conclusions in the Secretary of State’s decision
letter, fairly and as a whole – and not with the aim to find fault (see my
judgement in St Modwen, at paragraph 7). When that is done here, I
cannot see how the Secretary of State’s conclusions in paragraphs 28, 36, 37
and 47 of his decision letter can be criticized. Those conclusions are cogent,
and entirely compatible. They do not betray an unlawful approach.
81.
One should not read more into paragraphs 28, 36 and 37 than is actually
there. The conclusion in paragraph 28, that the need for shale gas exploration
should have “great weight”, was one the Secretary of State was entitled to
reach in the light of government policy. And it was consistent with his
conclusions in paragraphs 36 and 37 that the written ministerial statement and
the NPPF encourage shale gas exploration as an activity consistent with the
Government’s objectives “to achieve lower carbon emissions and help meet its
climate change target”, and “to support the transition to a low carbon future
in a changing climate”; and that the proposed development would “represent a
positive contribution towards the reduction of carbon”. The Secretary of State
was not saying – nor could he – that this development would itself bring about
a reduction in carbon emissions, or that such a benefit should weigh for it in
the planning balance. Contrary to Mr Willers’ submission, he did not give
“significant weight”, or any weight, to that supposition. He was merely
recognizing, quite properly, that the development would help to achieve the
objective of reducing carbon by establishing whether or not a commercially
viable resource of shale gas existed on these sites. That makes sense.
Exploration for shale gas is necessary before a commercial decision can be
taken on the viability of production, and a planning decision on the merits of
such development, if ever proposed. The Secretary of State’s conclusion in
paragraph 37 did not anticipate those future decisions. Rather, it acknowledged
that such decisions would only be possible if the present proposals for
exploration went ahead.
82.
The conclusion in paragraph 47 of the decision letter, that “no weight”
should be given to the “national economic benefits” of possible future
“commercial production” was not at odds with those earlier conclusions. It was,
however, a different conclusion from the inspector’s in paragraph 12.757 of her
report, which was not that “no weight” should be given to such benefits, but
that they should have “very limited weight”. The difference here was not simply
one of degree; it was a difference of principle. The Secretary of State meant
to stress it. He said that he noted – not that he agreed with – the inspector’s
conclusion as to weight, and he deliberately distanced himself from it. He
plainly had in mind here the policy in paragraph 147 of the NPPF, which is amplified
in the guidance in paragraph 27-120-20140306 of the PPG – in effect, that
decision-makers must be careful to distinguish between “exploration” for
hydrocarbons, “appraisal”, and subsequent commercial “production” if proposed.
He also referred to “commercial production” of shale gas on the appeal sites
and its potential benefits – carefully and correctly – in uncertain terms: “…
benefits which could flow from commercial production … at some point
in the future” (my emphasis).
83.
There is nothing legally wrong with any of that. The Secretary of State
was, in my view, entitled to conclude as he did in those passages of his
decision letter. As Mr Elvin and Ms Lieven submitted, there was nothing
inconsistent in his conclusions, and nothing inconsistent between them and the
approach taken in the EIA, which made no attempt to assess some future and still
unknown proposal for shale gas production.
84.
On all three of these issues, therefore, I think the second appeal must
fail.
Issue (4) in the second appeal
– the “precautionary principle”
85.
Mr Willers submitted that the Secretary of State fell into error in his
treatment of evidence on the possible effects of the proposed development on
human health, and in assuming that the relevant regulatory regime would operate
as it should; that there was “a real doubt” as to the health effects of shale
gas production, which the Secretary of State failed to heed, and that these
errors amounted to a failure to apply the “precautionary principle”.
86.
I am unable to accept those submissions. They were rejected by Dove J.,
who concluded that “the approach taken by the Inspector to the relationship
between the decision-taking process and the planning regime and other
regulatory regimes in paragraphs 12.590-12.595 [was] entirely orthodox and
unimpeachable” (paragraph 137 of the judgment), and found himself “wholly
unpersuaded that it [was] arguable that, taking account of the precautionary
principle, it was irrational for the Inspector to recommend approval, and …
[the Secretary of State] to accept that recommendation” (paragraph 138). I
agree.
87.
The argument here, essentially, is that the Secretary of State could not
reasonably reach the conclusions he did on the possible health effects of the
development – that his conclusions were irrational. Such a contention is never
easy to sustain in a challenge to a planning decision. It is especially
difficult when – as in this case – it goes to the decision-maker’s exercise of
planning judgment. Where a planning decision-maker accords appropriate respect
to the position of a statutory environmental regulator, whose own decision-making,
within its own statutory remit, is guided by expert scientific opinion, it
will, I think, be rare for the court to interfere (see the judgment of Beatson
L.J. in R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564, at paragraphs 67 to 82, and the judgment of Carnwath L.J., as he then
was, in Cornwall Waste Forum St Dennis Branch v Secretary of State for
Communities and Local Government [2012] EWCA Civ 379, at paragraph 34).
88.
The inspector devoted a lengthy passage of her report – in paragraphs
12.636 to 12.662 – to the issue of “Public Health and Public Concern”. She
concluded in paragraph 12.655 that “[as] regards the hazards associated with
potential exposure to air and water pollutants, [Cuadrilla] point out that such
matters would be strictly controlled by [the Environment Agency] through the
permitting system”, and that “[this] would ensure that no levels which could
have an impact on human health would be reached”. She noted that the Annex to
the written ministerial statement “provides support for that position”. In the
light of paragraph 122 of the NPPF, and the court’s decision in R. (on the
application of Frack Free Balcombe Residents Association) v West Sussex County
Council [2014] EWHC 4108 (Admin), she was “content that it could be assumed
that the regulatory system would operate effectively to control such
emissions”, and that “[there] would be no health impacts resulting from these
matters”. In paragraph 12.656 she said:
“12.656 … [Dr
David McCoy, an expert medical witness called at the inquiry on behalf of
Friends of the Earth] 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 will be
additional negative health and wellbeing impacts on nearby communities
associated with the matters raised by Dr McCoy. …”.
In paragraph 12.658 she said that
the evidence of interested parties did “not lead [her] to find that the
regulatory regime could not be relied upon to operate effectively in these
cases”. In paragraph 12.659 she said Cuadrilla had accepted that “public
concern is capable of being a material planning consideration”, citing West
Midlands Probation Committee v Secretary of State for the Environment and
Walsall Metropolitan Council (1998) 76 P & CR 589, BAILII: [1997] EWCA Civ 2682. Here, however,
“the processes would be regulated and all pathways that could potentially
impact upon human health would be monitored and appropriately controlled”. She
therefore agreed with Cuadrilla that “little weight should be given to these
concerns”. She did “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”. In paragraph 12.661 she concluded that
“[the] health impacts associated with these exploratory works appeals should be
distinguished from those which might be associated with production at scale”,
and that “[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”. In paragraph 12.662 she
said:
“12.662 I am
satisfied that [Cuadrilla] 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 [Policy DM2 of the minerals local plan, Policy CS5
and Policy CS9 of the minerals core strategy] and relevant national policy.”
Those conclusions were repeated
in her “Overall Conclusions”, in paragraphs 12.805 to 12.808 of her report.
89.
The policy in paragraph 122 of the NPPF, to which the inspector referred
in paragraph 12.655 of her report, states:
“122. …
[Local] planning authorities should focus on whether the development itself is
an acceptable use of the land, and the impact of the use, rather than the
control of processes or emissions themselves where these are subject to
approval under pollution control regimes. Local planning authorities should
assume that these regimes will operate effectively. …”.
The guidance in paragraph
27-012-20140306 of the PPG is to the same effect.
90.
In paragraph 34 of his decision letter, under the heading “Public health
and Public concern”, the Secretary of State said:
“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
[Cuadrilla] 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 [Policy DM2 of the minerals local plan,
Policy CS5 and Policy CS9 of the minerals core strategy] and relevant national
policy (IR12.662).”
91.
In attacking those conclusions, Mr Willers pointed to the evidence of Dr McCoy and various material that was before
the inspector relating to health impacts, including a report written by Dr
McCoy and Dr Patrick Saunders, entitled “Health & Fracking – The impacts
& opportunity costs”, published by Medact in 2015, a subsequent
report written by Dr McCoy and Dr Alice Munro, entitled “Shale Gas Production
in England – An Updated Public Health Assessment”, published by Medact in 2016,
and a document published in October 2015 by the Concerned Health Professionals
of New York, entitled “Compendium of Scientific, Medical, and Media Findings
Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil
Extraction)”. That last document adopted the opinion of the New York State
Health Commissioner that “[the] overall weight of the evidence from the
cumulative body of information contained in [the] Public Health Review
demonstrates that there are significant uncertainties about the kinds of
adverse health outcomes that may be associated with [high volume hydraulic
fracturing], the likelihood of the occurrence of adverse health outcomes, and
the effectiveness of some of the mitigation measures in reducing or preventing
environmental impacts which could adversely affect public health” (p.2).
92.
It is not the court’s task to review Dr McCoy’s evidence or the content
of the documents relating to human health relied on by objectors to the
proposed development, or the evidence given by Mr Smith in his rebuttal proof
of evidence. The question for the court is whether, as a matter of planning
judgment, the inspector could reasonably reach the conclusions she did in the
light of the evidence before her. In my view she undoubtedly could, not least
because Dr McCoy himself expressed his conclusions in appropriately measured
terms. In paragraph 7.4 of his proof of evidence he said that “[from] the
specific perspective of only shale gas exploration in two sites, my view is
that while both projects will produce some health and environmental
hazards, any negative direct impacts on human health will be concentrated in
people living in the immediate surroundings of the two proposed sites and be
most likely caused by the effects of noise and other nuisances”; and that
“[depending] on the extent to which noise and other nuisances are effectively
mitigated or tolerated, the level of negative impact may range from being negligible
to being significant”. As for “other hazards (notably water and air borne
pollutants)”, he said that “a negligible to low risk is due to the specific
combination of the temporary and limited nature of shale gas exploration; and
assumes that measures will be effectively applied to mitigate risk and harm”.
93.
Mr Willers did not point to any evidence before the inspector to negate
the principle expressed in paragraph 122 of the NPPF, that “[local] planning
authorities should assume that [pollution control] regimes will operate
effectively”. That principle in national planning policy is not easy to
reconcile with an argument that the Secretary of State has acted irrationally
in making a planning decision on the assumption that other regulatory regimes, including
those concerned with public health, will operate as they should. But even if
the NPPF had not said so, that assumption would surely be a reasonable one for
a planning decision-maker, unless there was clear evidence to cast doubt upon
it. There was no such evidence here. Similar conclusions were reached by
Gilbart J. in Frack Free Balcombe (at paragraphs 100 to 102) and
Patterson J. in R. (on the application of An Taisce (the National
Trust for Ireland)) v Secretary of State for Energy and Climate Change
[2013] EWHC 4161 (Admin) (at paragraphs 177 to 193), in an analysis endorsed by
the Court of Appeal ([2014] EWCA Civ 1111: see Sullivan L.J.’s judgment at
paragraphs 46 to 51). As Mr Elvin and Ms Lieven submitted, the opposite
conclusion is not supported by the decision of the Court of Justice of the
European Union in Afton Chemical Ltd. v Secretary of State for Transport (Case
C-343/09) [2011] 1 CMLR 16 – because in the United Kingdom a relevant
regulatory regime, derived from the law of the European Union, already existed.
In the circumstances, there was no “gap” in the relevant environmental
controls. Nor is it possible for Mr Willers to argue, in effect, that statutory
regulatory authorities with responsibilities relevant to human health were themselves
unreasonable in failing to object to the proposals. There was, in fact, no
objection from those authorities. And it was not for the inspector and the
Secretary of State, in performing their responsibilities under the statutory
planning code, to duplicate controls for which statutory responsibility lay
elsewhere. On the evidence before them, they were able to conclude as they did:
that there would be no adverse effects on health justifying the refusal of
planning permission. Legally, that was an impeccable conclusion.
94.
I therefore reject Mr Willers’ argument that the conclusions of the
inspector and the Secretary of State on health impacts are at odds with the
“precautionary approach” or the “precautionary principle”. The existence of
“uncertainty in [relevant] scientific knowledge” – as Mr Willers put it – does
not render unlawful the approach adopted by the inspector and the Secretary of
State. Both were satisfied that the relevant regulatory controls would operate
effectively to prevent harm to the environment and to human health arising from
the proposed development, where such harm lay beyond the reach of the statutory
planning regime. Not only was this conclusion properly open to them on the
evidence; it was also entirely consistent with the “precautionary approach”.
For the purposes of a planning decision, it was a perfectly rational
conclusion. And it was not undermined by the existence of scientific doubt or
dispute. In my view the judge was right to reject the argument put to him on
this ground.
95.
This analysis is not disturbed by observations on the potential effects
of fracking in the “Report of the Special Rapporteur on the implications for
human rights of the environmentally sound management and disposal of hazardous
substances and wastes on his mission to the United Kingdom …” to the United
Nations Human Rights Council for its meeting between 11 and 29 September 2017,
first published on 5 September 2017 (see in particular paragraphs 32 to 44).
That document could not have been taken into account by the Secretary of State,
because it came into existence only after his decision. But in any event it
does not undermine any of the conclusions he reached on “Public Health and
Public concern” for the purposes of making his decision on this particular
project of shale gas exploration, on the evidence as it was before him. The
observations made by the Special Rapporteur, whilst they refer to the Secretary
of State’s decisions in the present case, do not suggest that the Secretary of
State failed to address concerns relating to human health, or environmental
effects, with sufficient thoroughness and care, or that the “precautionary
approach” or “precautionary principle” was not applied (see, in particular,
paragraphs 35, 40 and 42 of the report).
96.
I should add, finally, that the conclusions to which I have come on this
issue, and on the previous three issues where they impinge on EIA, are not, in
my view, inconsistent in any way with the analysis in the recent decision of
the Court of Appeal in Northern Ireland in An Application by Friends of the
Earth Ltd. for Judicial Review [2017] NICA 41. That case concerned the
extraction of sand by dredging from the bed of Lough Neagh, an activity that
had been proceeding for many years without planning permission, whose
environmental effects had been acknowledged by the Department of the
Environment as likely to be significant. Further assessment under the EIA
Directive, and under Directive 92/43/EEC on the conservation of natural
habitats and of wild fauna and flora, was required and was yet to be carried
out. What the likely significant effects would actually be was still unknown at
the time of the minister’s decision not to issue a stop notice (see paragraphs
2 to 13 of the judgment of the court, delivered by Weatherup L.J.). It was in
this specific context that Weatherup L.J. observed that
“[the] proper approach is to proceed on the basis that there is an absence of
evidence that the operations are not having an unacceptable impact on
the environment” (paragraph 34), that the minister, in making his decision, had
failed to put into the balance “the absence of evidence that there is no harm”,
and that, in the circumstances, this was “the negation of the precautionary
principle” (paragraph 37). The facts and circumstances in this case are
materially different. Here, as I have said, no identified likely significant
effect on the environment, or specifically on human health, was ignored or went
unassessed before the Secretary of State made his decisions. There was, in the
circumstances here, no breach of the “precautionary principle”.
A reference for a preliminary
ruling?
97.
I see no justification for a reference to the Court of Justice of the
European Union in this case. The contentious matters are “acte clair”, and
there is no scope for reasonable doubt as to the answers to be given (see the
judgment of the court in CILFIT v Ministry of Health (Case C-283/81)
[1982] ECR 3415, at paragraph 16).
Conclusion
98.
For the reasons I have given, I would dismiss both appeals.
Lord Justice Henderson
99.
I agree.
Lord Justice Simon
100. I also agree.
