QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| PRESTON NEW ROAD ACTION GROUP
(Through MRS SUSAN HOLLIDAY)
|- and -
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and -
|LANCASHIRE COUNTY COUNCIL
|- and -
|CUADRILLA BOWLAND LIMITED
|- and -
|CUADRILLA ELSWICK LIMITED
Marc Willers QC & Estelle Dehon (instructed by Richard Buxton) for the Second Claimant
Rupert Warren QC & David Blundell (instructed by GLD) for the First Defendant
Nathalie Lieven QC & Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Third and Fourth Defendants
The Second Defendant was not represented
Hearing dates: 15th & 16th March 2017
Crown Copyright ©
Mr Justice Dove :
"Construction and operation of a site for drilling up to four exploratory wells, hydraulic fracturing of the wells, testing for hydrocarbons, abandonment of the wells and restoration, including provision of an access road and access onto the highway, security fencing, lighting and other uses ancillary to the exploration activities, including the construction of a pipeline and a connection to the gas grid network and associated infrastructure to land to the north of Preston New Road, Little Plumpton."
"If the exploration work proves that the flow of natural gas from the shale would support long term shale gas production the Site, a new planning application and ES could be prepared and submitted for approval. However, this would be dependant on there being sufficient gas present in this area of the Bowland Shale."
"1. The development would cause an unacceptable adverse impact on the landscape, arising from the drilling equipment, noise mitigation equipment, storage plant, flare stacks and other associated development. The combined effect would result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policy DM2 of the Fylde Local Plan.
2. The development would cause unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to Policy DM2 of the Lancashire Minerals Waste Local Plan and Policy EP27 of the Fylde Local Plan."
"5.1. PNRAG will call evidence at the inquiry to demonstrate that the appeal scheme:
5.1.1. will cause demonstrable harm to important and valued landscape and is therefore contrary to save policies SP2, SP9 and EP11 Fylde Local Plan, policy DM2 Joint Lancashire Minerals and Waste Local Plan and policy CS5 Joint Lancashire Minerals and Waste Core Strategy…
5.1.3. will consequentially cause unacceptable harm to the amenity of residential occupiers by virtue of its urbanising effects, light, and noise emissions, contrary to saved policy EP28 Fylde Local Plan, policy DM2 Joint Lancashire Minerals and Waste Local Plan and policy CS5 Joint Lancashire Minerals and Waste Core Strategy, in addition to paragraphs 17, 109, 123 and 144, NPPF."
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."
"Criteria will be developed for the site identification process, and also for considering other proposals brought forward outside the plan-making process, to ensure that:
(i) our natural resources including water, air, soil and biodiversity are protected from harm and opportunities are taken to enhance them;
(ii) features and landscapes of historic and cultural importance and their settings are protected from harm and opportunities are taken to enhance them;
(iii) workings will not adversely contribute to fluvial flood risks or surface water flooding;
(iv) proposals for mineral workings incorporate measures to conserve, enhance and protect the character of Lancashire's landscapes;
(v) the amenity, health, economic well-being and safety of the population are protected by the introduction of high operating standards, sensitive working practices and environmental management systems that minimise harm and nuisance to the environment and local communities throughout the life of the development;
(vi) essential infrastructure and services to the public will be protected;
(vii) sensitive environmental restoration and aftercare of sites takes place, appropriate to the landscape character of the locality and the delivery of national and local biodiversity action plans. Where appropriate, this will include improvements to public access to the former workings to realise their amenity value."
"Policy DM2 - Development Management
Development for minerals or waste management operations will be supported where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels. In assessing proposals account will be taken of the proposal's setting, baseline environmental conditions and neighbouring land uses, together with the extent to which its impacts can be controlled in accordance with current best practice and recognised standards.
In accordance with Policy CS5 and CS9 of the Core Strategy developments will be supported for minerals or waste developments where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that the proposals will, where appropriate, make a positive contribution to the:
- Local and wider economy
- Historic environment
- Biodiversity, geodiversity and landscape character
- Residential amenity of those living nearby
- Reduction of carbon emissions
- Reduction in the length and number of journeys made
This will be achieved through for example:
- The quality of design, layout, form, scale and appearance of buildings
- The control of emissions from the proposal including dust, noise, light and water.
- Restoration within agreed time limits, to a beneficial afteruse and the management of landscaping and tree planting.
- The control of the numbers, frequency, timing and routing of transport related to the development"
"11. Conserving and enhancing the natural environment
109. The planning system should contribute to and enhance the natural and local environment by:
- protecting and enhancing valued landscapes, geological conservation interests and soils."
"37. RAG explained that in terms of equality of arms, it did not have deep pockets. If the appeals were all dealt with together then it would need to be present on each day of the Inquiry. There were two separate sites and each should be looked at separately to avoid placing an unfair burden upon the Rule 6 party. The case advanced by RAG was on specific issues and the scope for repetition should be small. PNRAG supported an approach that dealt with each site separately. The Treales, Roseacre and Wharles Parish Council also drew attention to the four separate applications that are the subject of these appeals and the resource and time implications that the consideration of the appeals would have for small groups…
39. In response, the Appellants acknowledged the importance of the Inquiry proceeding in a way that was fair to all, but pointed out that in terms of its evidence, Mr Smith would give evidence that would cover both sites in generic terms. For him to cover both sites separately would only prolong the Inquiry and for that reason he should be called once and cross-examined once. The same considerations applied to the Appellants' noise witness. It was also noted that the noise witness was not available for the third week of the Inquiry. However, there could be a separate session dealing with the Roseacre Wood site traffic issues. The Appellants' traffic witness was available throughout and could be called separately for each site on that issue. Furthermore, it would seem that little of the landscape evidence was generic and for the most part, his evidence could be dealt with in two parts to assist the Rule 6 parties. The North & Western Chamber of Commerce supported the appeals proceeding together rather than on a site specific basis."
"8.24 The findings as set out above in relation to policy DM2 are also relevant to policy EP11. In my opinion even greater weight should be afforded to national policy and guidance when assessing the proposals for exploration in relation to policies of the Fylde Local Plan. This is due to the date of the Fylde Local Plan policy (2005). Given the age of the policy it does not address the specific issues and national need and benefits of hydrocarbon exploration and extraction, as set out in recent government statements."
The findings which he alludes to in relation to policy DM2 were that in accordance with the evidence of his colleague Mr Tempany, a landscape architect and expert in landscape impact, he had concluded "that there will be no long lasting significant adverse change to the character of the landscape and any associated urbanising effect".
"7.1 My conclusions in respect of this proposal in landscape terms are that the appeal proposals are in conflict with relevant policies of the Development Plan, namely EP11 and SP2 of the Fylde Borough Local Plan and EP27 in respect of Noise and policy DM2 of the Adopted Joint Lancashire Minerals and Waste Local Plan. Therefore the effective "presumption against" embodied in Section 38(6) of the Planning and Compulsory Purchase Act 2004 arises…
7.3 In my opinion, the site and its setting fall within an area of "valued countryside" within the meaning expressed in the NPPF para 109. As far as I can see it does not have to be "designated countryside" to meet this criterion. Following the advice of the Lancashire Landscape Strategy, and based on my own observations it is valued because of its openness of appearance and character. To seek to develop part of it for purposes unrelated to agriculture and related activities would cause avoidable harm."
"8.6 In summary, significant effects may arise from the drilling, hydraulic fracturing and flow testing phase for the caravan park at Great Plumpton. Moderate adverse (but not significant) effects may be expected for receptors to two roads and a small fishing pond. Potentially significant effects may arise for around 11 residential receptors.
8.7 Arup's report, as noted previously, does not assess specific receptors. However, it describes likely significant effects (based on its own methodology) for seven of the chosen viewpoints. Based on this information, I would argue that significant visual effects are likely to be greater than those reported in the Appellant's LVIA.
8.8 Further to the significant effects expected from the drilling, hydraulic fracturing and flow testing phase, I would expect that similar effects will arise from the subsequent extended flow testing phase for sensitive receptors. Whilst the 53m drilling rig will no longer be in place, associated fencing, infrastructure and ancillary equipment will remain as an incongruous, industrial element in otherwise rural views until any eventual restoration is undertaken."
His conclusions in relation to landscape character, in particular as measured against policies DM2 and EP11, were as follows:
"9.2 The character of the landscape in which the site sits is distinct from the urban areas to the east and west of the site. The adverse impacts of the proposals on the landscape character and the local visual amenity is significant and will change the character of this landscape. This change can be expressed as 'urbanising'. The development has not eliminated or reduced to acceptable levels the landscape harm and as such it does not meet the requirements of support required in Policy DM2…
9.5 These policies combine to protect the distinct landscape character of the Borough. An important part of this objective is that the siting of the development should reflect the Borough's landscape character types. My analysis of the local landscape character type identifies that the proposals will not be in keeping the landscape surrounding it. As such it is contrary to policy EP11."
"5.14 The appeal site occupies an extremely small proportion of the Fylde Drift Farmland landscape character area. Given that the Preston New Road exploration site occupies only a very small footprint of the overall 'Fylde' landscape character area, this development would have a negligible effect on the overall physical landscape character. This judgement would also apply to the monitoring arrays given their extremely localised footprint and contained character.
5.15 More locally, only a very few, minor and commonplace landscape components would be directly affected by the exploratory works, namely: a 40m length of existing hedgerow and a limited number of mature hedgerow trees to the Preston New Road frontage, plus lowering of existing hedgerows for the visibility splay.
5.16 I now consider impacts of the proposal upon perceptual landscape character, that is, the experience of the landscape, as described in paragraph 1.13 above.
5.17 Perceptual and indirect effects upon landscape character would only occur during the construction, drilling, fracturing and flow testing phases. The distance across which any indirect effects on the perceptual or aesthetic aspects of surrounding landscape assets might be experienced is tightly drawn with such effects being localised in occurrence…
5.22… I consider that the mitigation described in the ES to minimise localised landscape effects is reasonable and appropriate. Any localised changes to landscape components, for example the removal of hedgerows, would be fully remediated through the reinstatement of hedgerows and replacement hedgerow trees. It should be noted that the landscape would also be restored to its current condition on completion of the works.
5.23 In relation to the reasons for refusal, it is my judgement that the development at Preston New Road would not "cause an unacceptable adverse impact on the landscape' nor would it 'result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policies DM2 and EP11".
Turning to the question of visual effects Mr Tempany concluded as follows:
"5.24 The ES acknowledges that there would be some significant adverse visual effects. These would arise during only the drilling, fracturing and initial flow testing phase and the intermittent use of a 53m high drilling rig at various locations on the two sites (the same rig to be used at both Preston New Road and Roseacre Wood, therefore there is no possibility of cumulative visual issues between the two sites during this phase, and with periods of lay down and with the rig occupying different locations within the site curtilages during different phases of the exploratory works). Furthermore, these effects would be temporary in nature and intermittent during those respective phases over a period of 29 months…
5.27 These intermittent visual effects are consistent with many exploratory mineral developments, especially gas / hydrocarbon development activity that might use drilling rigs or the construction phase of developments where cranes are used. Both examples involve vertical elements which appear as visible but transient features in the landscape.
5.28 The ES concluded that the significant adverse visual effects would arise only on a limited number of very localised receptors. As explained for the indirect Landscape effects, these relate to visual receptors that lie within a 1km radius around the site."
"Although a 'regulatory roadmap' for onshore oil and gas exploration has been published by DECC and provides some detail about best practice related to the licensing, permitting and permissions process for onshore oil and gas exploration, including shale gas, this is not legally binding and does not cover shale gas production.
Technical guidance to clarify which environmental regulations apply to the onshore oil and gas exploration and what operators need to do to comply with those regulations, published by the EA in draft form, is similarly a weak form of regulation.
There are other regulatory gaps and uncertainties. For example, the guidance published by the EA lacks detailed specifications about the mandatory requirements for 'reduced emission completions' (a term used to describe practices to prevent fugitive methane emissions during well completions and workovers following fracking).
Regulatory processes for the public disclosure of data about fracking fluid and flowback, and their independent verification, are also absent. Detail about the quality, frequency, amount and comprehensiveness of pollutant monitoring is also unclear. We also do not know how flowback will be treated and disposed of; or whether it will be recycled and re-used. Another concern is the proposal that plugged and abandoned wells will be monitored for only one year after abandonment, and that this is to be conducted by the operators themselves.
This relates to another set of concerns about the regulatory system being over-dependent on self-regulation and on a voluntary 'goal-setting approach' in which operators are assumed to apply best available techniques and good industry practices. The role of independent monitoring or independent verification of operator reports is limited. This includes the requirement for an 'independent and competent person' to examine the integrity and quality of well design and construction. While described as independent, such a person is often paid for or employed by the operator, and usually conducts the review and examination of well specifications and design as a paper exercise. As such, there is no mandatory and fully independent regulatory oversight of actual construction of wells, and no provision for unannounced and appropriately frequent spot checks, nor for inspections of well integrity to occur across the lifecycle of a well, including after abandonment.
Compounding the over-reliance on self-regulation is a limited sanctions regime in the event of noncompliance with safety standards and best practice…
Finally, there are valid concerns about the capacity of the various regulatory bodies, including local government, which have been weakened by staff and budget cuts and which may lack specialist expertise in shale gas production."
The overall conclusions of the report were stated as follows:
"The risks and harms associated with fracking in a small area with one or a few boreholes are not comparable to the risks and harms associated with fracking on an industrial scale. The risks and impact of multiple wellpads with up to sixty boreholes need to be modelled and examined. At present, no attempt has been made to assess the health and environmental impact of fracking at an industrial scale in the UK.
Although a growing body of literature indicates that fracking cannot be made entirely safe through any regulatory framework (especially in densely-populated areas), it is possible for risks to minimised and managed. It is important to acknowledge that many industrial activities cause pollution and carry some degree of risk to human and environmental health. A key question is whether the risks associated with fracking can be kept down to a level that is considered acceptable.
At present, the regulatory system for fracking is insufficiently clear, complete or robust. These deficiencies are accentuated by indications that the capacity of regulators are being eroded by budget and staff cuts…
Various medical and scientific organisations and scholars from different countries have formally highlighted the legitimacy of public health concerns whilst calling for more data and better studies on the health effects of fracking. At the same time, several jurisdictions across the world have concluded, on the basis of existing evidence, that the risks and harms associated with fracking outweigh the potential benefits.
France and Bulgaria have banned the process outright. New Brunswick, Canada has also enacted a moratorium on all forms of fracking. New York State in the US recently effectively prohibited shale gas development, citing public health risks as the primary reason. According to Howard Zucker, New York State Health Commissioner, 'the potential risks (to health) are too great, in fact not even fully known, and relying on the limited data at present available would be negligent" On the basis of our existing knowledge, it would be both prudent and responsible to call for, at the very least, a five year moratorium on all activities related to shale gas development, in order to provide the time to:
a. Learn from more research that will be published in due course
b. Debate and correct the deficiencies and uncertainties that have been identified in the current regulatory system
c. Conduct a comprehensive and holistic health impact assessment that accounts for all the potential risks to health, including their cumulative and compound effects on each other; and be tailored to the specific geological, economic, environmental and social characteristics of the areas targeted for fracking; and be based on projected levels of fracking at an industrial scale."
"My Rt Hon Friend Greg Clark (Secretary of State for Communities and Local Government) and I wish to set out the Government's view that there is a national need to explore and develop our shale gas and oil resources in a safe, and sustainable and timely way, and the steps it is taking to support this. In laying this statement before Parliament, it formally replaces the Shale Gas and Oil Policy Statement issued by DECC and DCLG on 13 August 2015. This statement to Parliament should be taken into account in planning decisions and plan-making.
The national need to explore our shale gas and oil resources
Exploring and developing our shale gas and oil resources could potentially bring substantial benefits and help meet our objectives for secure energy supplies, economic growth and lower carbon emissions.
Having access to clean, safe and secure supplies of natural gas for years to come is a key requirement if the UK is to successfully transition in the longer term to a low-carbon economy. The Government remains fully committed to the development and deployment of renewable technologies for heat and electricity generation and to driving up energy efficiency, but we need gas - the cleanest of all fossil fuels – to support our climate change target by providing flexibility while we do that and help us to reduce the use of high-carbon coal…
We do not yet know the full scale of the UK's shale resources nor how much can be extracted technically or economically.
· The British Geological Survey estimates the shale gas resource in the Bowland-Hodder basin under Northern England could be 1300 trillion cubic feet (tcf), compared to current UK annual gas consumption of around 2.5 tcf. The industry need to test how much of this gas in place can be extracted technically and economically.
· National Grid's Future Energy Scenarios (2015) report presents a wide range for potential shale gas production in the UK up to a peak of 32 bcm/year in 2030. This would be around 40% of all the gas we are projected to consume and result in our import dependency falling to 34%, compared to current projections that net imports could reach 75% in 2030.
Shale gas can create a bridge while we develop renewable energy, improve energy efficiency and build new nuclear generating capacity. Studies have shown that the carbon footprint of electricity from UK shale gas would be likely to be significantly less than unabated coal and also lower than imported Liquefied Natural Gas.
The Government therefore considers that there is a clear need to seize the opportunity now to explore and test our shale potential.
Safety and environmental protection will be ensured through responsible development and robust regulation
This must and can be done whilst maintaining the very highest safety and environmental standards, which we have established with a world-leading framework for extracting oil and gas for over 50 years.
Reports by the Royal Society and Royal Academy of Engineering, Public Health England and others have considered a wide range of evidence on hydraulic fracturing in the UK context, and concluded that risks can be managed effectively if the industry follows best practice, enforced through regulation.
The Government is confident we have the right protections in place now to explore shale safely (see Annex). Planning authorities can also have confidence that the regulators will enforce safety, environmental and seismic regulation effectively. But we are not complacent. We will continuously look to strengthen and improve regulation where necessary as the industry develops…
This Annex contains supporting material for the main statement.
Safety and environmental protection
· Our regulatory system is robust and we are proven world leaders, with a 50 year track record, in well-regulated, safe and environmentally sound oil and gas developments. We have strict requirements through environmental permitting and DECC licencing for on-site safety, to prevent water contamination, air pollution and mitigate seismic activity.
· The Health and Safety Executive and the environmental regulators (the Environment Agency in England) are independent and highly specialised regulators. They will enable the development of shale gas in a safe and environmentally sound manner.
· The Environment Agency assesses the potential use of chemicals used in hydraulic fracturing fluids on a case-by-case basis. The use of hazardous chemicals will not be permitted where there is a risk that they may enter groundwater and cause pollution.
· The Health and Safety Executive scrutinise well design and require week by week written updates on drilling progress.
· DECC has implemented a thorough system of rigorous checks before any drilling or fracking and a live traffic light system during the actual operations, to ensure earth tremors will not occur.
To reinforce the existing regulatory regime further, the Infrastructure Act 2015 brought forward a range of additional requirements and safeguards if an operator is to carry out hydraulic fracturing.
· These include taking account of the environmental impact of development, baseline monitoring of methane in groundwater in the 12 months preceding hydraulic fracturing operations, disclosure of all chemicals, community benefits and the exclusion of protected areas.
· Draft regulations, laid on 16 July, defining the protected areas in which fracking will be prohibited as specified areas of groundwater, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage Sites. Fracking can only take place at depths below 1200 metres in these areas.
· Ministers also set out their clear commitment to ensure that hydraulic fracturing cannot be conducted from wells that are drilled at the surface of National Parks and other protected areas. This is not intended to impact on conventional drilling operations.
Transparency and information for the public
Following the Autumn Statement announcement of £5m for 2015-16 to "provide independent evidence directly to the public about the robustness of the existing [shale gas] regulatory regime", DECC received £1.7m to establish independent environmental monitoring and is working with a research consortium led by the British Geological Survey to expand an existing Lancashire-based programme for gathering baseline environmental data to North Yorkshire, where a planning application for a shale gas project is being submitted. The data produced would be made available to the public."
"6. PLANNING POLICY CONTEXT
6 1 This section sets out the principal planning policies which the Parties agree should be taken into account in the determination of this appeal…
6.2.2 The Development Plan comprising:
(A) Joint Lancashire Minerals and Waste Development Framework Core Strategy Development Plan Document, February 2009 ("JLMWLP") (Core Document 48.8);
(B) Joint Lancashire Site Allocation and Development Management Policies DPCD, September 2013 (Core Document 48.9); and
(C) Fylde Borough Local Plan, May 2003 (Core Document 48.10)….
6.3.1 The NPPF sets out the Government's overarching planning policies and is a material consideration when determining planning applications. The Parties agree that the following paragraphs of the NPPF are relevant to determination of the appeal:…
(G) Paragraph 109: Conserving and enhancing the natural environment;…
6.6 Local Development Plan
6.6.1 The Development Plan for the site is made up of the LMWDF, the Joint Lancashire Minerals and Waste Local Plan - Site Allocation and Development Management Policies - Part One and the Fylde Borough Local Plan The following policies were relevant to consideration of the Exploration Application:
6.6.2 Joint Lancashire Minerals and Waste Development Framework Core Strategy Development Plan Document, February 2009
(A) Policy CS1 • Safeguarding Lancashire's Mineral Resources; and
(B) Policy CSS: Achieving Sustainable Minerals Production.
6.6.3 Joint Lancashire Site Allocation and Development Management Policies. September 2013
(A) Policy NPPF1: Presumption in favour of sustainable development; and
(B) Policy DM2: Development Management 6 6.4 Fylde Borough Local Plan, May 2003"
"29. It was entirely clear over the course of the Inquiry that Cuadrilla's case was that policy EP11 was not relevant to the type of planning applications in question before the Inspector. This was evident at various stages of the Inquiry:
i) Mark Smith's main proof of evidence as Cuadrilla's planning expert noted, in the context of EP11 at paragraph 8.24, that the Fylde Local Plan was outdated and did not address the specific issues, or reflect the national need and benefits of hydrocarbon exploration and extraction, as set out in the Written Ministerial Statement of September 2015.
ii) During Dr Ashley Bowes's cross-examination of Mark Smith I understand that Dr Bowes, who was appearing on behalf of PNRAG, specifically questioned Mr Smith on Policy EP11. During this cross-examination, Mr Smith reiterated his view that Policy EP11 was not intended for temporary mineral-related development.
iii) Nathalie Lieven QC cross-examined LCC's planning witness, Katie Atkinson, on the applicability of Policy EP11. I am aware that she specifically questioned Ms Atkinson on the applicability of EP11 to applications for the exploration of hydrocarbons – particularly ones involving the installation of drilling rigs.
iv) Our case was also clear to the other main parties at the Inquiry. For instance, LCC's counsel, Alan Evans, cross-examined Mr Smith regarding the relevance of the policy. He also questioned Ms Atkinson about her views on the applicability of EP11. I believe that Ms Atkinson acknowledged that Mr Smith was making a case for the impossibility of application EP11.
v) Finally, Cuadrilla's Closing Statement of 16 March 2016 fully set out our case on the EP11 point. A copy of the Closing Statement was provided to all the parties, and was also uploaded on the Programme Officer's website. In particular, in paragraph 24, Nathalie Lieven QC highlighted that it would be "simply impossible for a [shale gas] exploration application, given the equipment required, to meet the policies of the Local Plan". These submissions were recorded in the Inspector's Report."
|AB||Within still the Fylde Local Plan, policy EP11, where you were taken just a moment ago at p.142, if you have it in hard copy…new development in rural areas should be sited in keeping with the distinct landscape character types in the Landscape Strategy for Lancashire.|
|AB||If we look above at the reasoned justification… it tells us that the evidence base includes Lancashire County Council a Landscape Strategy for Lancashire… can you see that?|
|MS||I can see that yes.|
|AB||We know that EP11 is relevant to this appeal because at 6.6.1 if you still have it open it is common ground that it is engaged and relevant is it not?|
|MS||It is in the statement of common ground, yes|
|AB||Would you not agree with a conflict therefore with the Landscape Strategy for Lancashire must result in a conflict with EP11?|
|MS||Could you repeat the question?|
|AB||If we take it in steps, if we look at EP11, it tells us that new development in rural areas should be sited in-keeping with the landscape character types identified in the Landscape Strategy for Lancashire, so a development that was not in keeping with the landscape character types identified in the Landscape Strategy for Lancashire would conflict with that policy wouldn't it?|
|MS||Strict interpretation of that policy, would be yes, although as I explained in cross examination from Mr Evans, that policy is principally directed toward new permanent build development not minerals, as was SP2, as there is no reference to minerals in SP2, and I do not think this policy really gave any consideration to those temporary forms of development such as minerals|
|AB||But we know it is in the statement of common ground and you are not departing from that?|
|MS||As regards to, it's in the statement of common ground.|
|AB||As the following policies were relevant to consideration of the exploration application?|
"5. It is also agreed within the Statement of Common Ground (1 February 2016) that the following policies were engaged by the appeal scheme:…
b. Policy EP11 – Fylde Local Plan…"
A little later within the closing Dr Bowes made the following submissions in relation to landscape impact:
"Issue 1 – Harm to the landscape
19. By EP11 Fylde Local Plan (2005) new development in the rural area should be "in keeping" with the landscape types identified the Landscape Strategy for Lancashire (CD/15.1). Mr Smith accepted in XX that a conflict with the Strategy must therefore amount to a conflict with the policy EP11…
29. The proposal therefore, by definition, conflicts with the development plan policies adopted to promote that Strategy. Accordingly, we say there us a clear and inescapable conflict with policies EP11 Fylde Local Plan (2005), DM2 Lancashire Waste and Minerals Plan (2013) and CS5 Lancashire Waste and Minerals Core Strategy (2009)…"
"The Fylde Local Plan
23. LCC cited policy EP11 in the Local Plan in the Reasons for Refusal at PNR. The Local Plan does not purport to deal with minerals development and has no relevance to this form of development. Fylde is not the MPA, and it is clear from the introduction to the Plan that it did not intend to be applied to mineral development. There may be some forms of waste development, i.e. built development, where it has some relevance, but not to the type of application in consideration here.
24. The proof of that point lies in the fact that it would be simply impossible for a SG exploration application, given the equipment required, to meet the policies of the Local Plan. The Council appear to accept that in respect of policy SP2, but it is equally obvious in respect of EP11. It is not possible to design a drilling rig in a "vernacular style", or to assimilate a 36/53m rig into the landscape. It is quite obvious that EP11 is a policy aimed at built development, and not an engineering operation such as SG exploration.
25. In any event the Fylde Local Plan is also silent in respect of SG exploration, and out of date in respect of Government policy and thus should be given little weight on this ground as well if it is considered to have any relevance.
26. Therefore any perceived conflict with EP11 should be given minimal if any weight."
The Inspector's Report
"1.189 These permits cover:
- A mining waste operation for the management of extractive waste not involving a Mining Waste Facility.
- In respect of hydraulically fractured wells, a non-hazardous Mining Waste Facility for the accumulation of injected hydraulic fracturing fluid which will remain in the underground target formation and has become waste;
- An above ground hazardous Mining Waste Facility for the temporary deposit and accumulation of hazardous waste in storage containers as the wells are successively drilled. The hazardous waste will include drill cuttings coated with residual Low Toxicity Oil Based Muds ("LTOBM").
- A groundwater activity for the discharge, namely of fracturing fluid into the target formation, that might lead to an indirect input of a pollutant to groundwater.
- The incineration by flaring of hazardous waste, namely natural gas above 10 tonnes per day, as an activity listed in schedule 1 of the Environmental Permitting (England and Wales) Regulations 2010."
She also noted that two Radioactive Substances permits had also been issued. Further permits were required in respect of the works which would have to be applied for in due course.
"12.29 ... The FBLP does not expressly state that any policy in it may be applied to minerals or waste development. Conversely, there is nothing in it which states that no policies in it should be applied to minerals or waste development. I concur with the stance of LCC that if the FBLP was per se incapable of application to minerals and waste proposals then it would not be possible to read it "in conjunction with" another plan dealing with the same; one would simply read the other plan.
12.30 LCC accepts that if it were correct that it would be impossible for a shale gas proposal to satisfy Policy SP2 because it is not a category of development permitted in countryside areas, then that would demonstrate that that particular policy could not then sensibly be applied. To my mind, that represents an appropriate stance. The Appellants' position that all policies in the FBLP are irrelevant to shale gas development cannot be supported. Where policies in the FBLP are capable of sensible application to minerals development, then they can reasonably be applied.
12.31 In relation to Policy EP11, the Appellants claim that this is obviously a policy aimed at built development and not an engineering operation such as shale gas exploration. The supporting text stresses the importance of ensuring that any new development pays particular regard not only to the natural landscape but also to the historical and vernacular character of the area so that, as far as possible, it is assimilated into the landscape rather than imposed upon it. The policy, itself, is consistent with the NPPF, para 17, bullet point 5, and its requirement for design to be of a high standard reflects the NPPF approach to requiring good design set out in section 7. LCC accepts that the requirement that, "..building materials should reflect the local vernacular style" could not apply to the proposed development. However, it seems to me that it is not only that aspect of the policy that is obviously inapplicable, but also the main thrust of the policy is aimed at the assimilation of new built development, rather than the type of development that is the subject of these appeals. This is an instance where the most appropriate policy against which to consider the landscape character impact and the design of the proposed development falls within the JLMWLP. Policy EP11 cannot sensibly be applied to these schemes."
12.70 The proposed on-site landscape and visual mitigation would be in the form of seeded earth bunds to two sides of the perimeter and native planting of whips and transplants to all sides of the perimeter, planted between the outer stock proof boundary fence and noise and security fencing. The Appellant acknowledges that the planting would not achieve its maximum potential during the six year operational life of the development. Nevertheless, it would provide a degree of screening and mitigation benefit in relation to the ground level infrastructure and fencing during the operational life of the scheme. There would also be scope for planning conditions to control the colour of certain items of plant and equipment, the design and location of the perimeter landscaping mounds, the colour and design of fencing, the lighting scheme and the details of the restoration scheme. The proposed mitigation would seem to be reasonable given the development proposed and the nature of the site. However, it would do little to reduce the visual impact of the taller structures associated with the drilling, hydraulic fracturing and flow testing."
"The value of the landscape
12.81 The appeal site is not within an area formally designated for its natural scenic beauty or landscape qualities. There would be no impact upon any designated landscape to which the NPPF, para 115, requires great weight to be given. Although the site does not fall within an area to which the highest status of protection should be afforded, the NPPF, para 109, also seeks to protect and enhance 'valued' landscapes. The Appellant acknowledges that other landscapes can be valued and that it is necessary to consider the nature of the landscape in this case…
12.84 The GLVIA provides some guidance as to how to assess the identification of valued landscapes. It explains that the fact that an area of landscape is not designated either nationally or locally does not mean that it does not have any value. It sets out at Box 5.1 a range of factors that can help in the identification of valued landscapes. Looking at each of those factors in turn, I do not consider this to be an area of landscape that displays features to which a high value can be attributed.
12.85 Nonetheless, the landscape does have some value at local level and the appeal site displays a number of positive characteristics identified by the Lancashire Landscape Strategy. For those reasons, I consider that it is a 'valued' landscape in NPPF terms."
"12.88 The GLVIA advises that an assessment of landscape effects should consider how the proposal would affect the elements that make up the landscape, its aesthetic and perceptual aspects, its distinctive character and the key characteristics that contribute to this.
12.89 Turning to the magnitude of landscape effects, the GLVIA, para 5.48, explains that each effect on landscape receptors needs to be assessed in terms of its size or scale, the geographical extent of the area influenced, and its duration and reversibility. As regards the size or scale of the effect, judgements should have regard to the extent of the existing landscape elements that would be lost, the proportion of the total extent that this represents and the contribution of that element to the character of the landscape.
12.90 The appeal site occupies about 1ha which represents an extremely small proportion of the overall 'Fylde' landscape character area. In terms of the overall physical landscape character, the proposed development would have a negligible effect. More locally, there would be some impact upon individual components of the landscape. However, only few, relatively commonplace landscape components would be directly affected by the exploratory works, such as a 40m length of existing hedgerow and a limited number of mature hedgerow trees to the Preston New Road frontage and lowering of existing hedgerows for the visibility splay. There are no significant existing landscape features that would be removed. The direct effect would therefore be fairly localised in nature with limited loss of individual components of the landscape.
12.91 The GLVIA also provides that account may be taken of the degree to which aesthetic or perceptual aspects of the landscape are altered either by the removal of existing components of the landscape or by the addition of new ones and whether the effect changes the key characteristics of the landscape which are critical to its distinctive character. The geographical extent over which the landscape effects would be felt must also be considered…
12.95 In reaching a judgement on the overall significance of the effect on the landscape, it is necessary to consider not only the direct effect but also the effect on aesthetic or perceptual aspects that contribute to the character and distinctiveness of the landscape. There can be no doubt that the existing perception of an undulating open agricultural field would be lost for the duration of the works. It is inconceivable that during the drilling, hydraulic fracturing and initial flow testing stage there would be no direct physical change to the local landscape character beyond that already experienced at construction. The addition of new elements, particularly during the first phase with the introduction of the taller structures, would inevitably influence the character of the landscape and how it is perceived. There are structures with a vertical element in the vicinity but the pylons, for example, by virtue of their porous lattice structure and lack of illumination and associated development, are less visually intrusive than the proposed development. I consider that the combined effect of the changes would result in a significant impact on the immediate landscape that would be perceived from a wider area of about 1km.
12.96 The Appellant points out that within that 1km radius, the M55 lies to the north and to the south of the site lies the A583. These are factors which must inevitably serve to physically constrain the landscape impact to some extent. PNRAG draws attention to that part of the Lancashire Landscape Strategy which seeks to enhance landscapes associated with major infrastructure developments such as the M6 and M55 corridors. To achieve this, it recommends improving drainage and to consider tree planting in areas where it can integrate new development. Thus, as Mr Tempany accepted, these are seen as harmful infrastructure developments which should be mitigated. To my mind, they clearly do not provide justification for other development harmful to the landscape to take place."
"The duration of the landscape effects
12.99 As regards the duration of the landscape effects, the GLVIA advises that this can usually be judged on a scale such as short-term, medium-term or long-term where, for example, short-term might be zero to five years, medium-term five to ten years and long-term ten to twenty five years. These words are subject to the caveat that "there is no fixed rule on these definitions and so in each case it must be made clear how the categories are defined and the reasons for this." The duration of the development as a whole would extend slightly beyond what GLVIA suggests might reasonably be regarded as short-term. However, as indicated above, the first phase would be completed much sooner.
12.100 LCC draws support from the PPGM, para 98, in seeking to make the point that the development should not be regarded as short-term in nature. The guidance in PPGM was written specifically with reference to drilling for hydrocarbons. It distinguishes between the typical periods for exploratory drilling for conventional and unconventional hydrocarbons and describes the former as being a "short-term but intensive, activity" and comments that exploratory drilling for the latter "may take considerably longer". However, it does not specifically define what should be regarded as short-term in visual impact assessment terms and it seems to me that that was not the purpose of that part of the guidance which should not be taken out of context. For that reason, I find the GLVIA to be more helpful in this particular respect.
12.101 Whilst I have had regard to the landscape and visual effects that would be experienced over the entire duration of the permission sought, as indicated above, there are good reasons to justify distinguishing between the different phases of the development. In my view, the adverse landscape effects of greatest significance would be experienced during the first phase of the development and this would be a short-term impact. Furthermore, the particular effects associated with the proposed development would ultimately be reversed at the end of the temporary six year period. Any localised changes to landscape components, such as the removal of hedgerows, would be fully remediated through the reinstatement of hedgerows and replacement hedgerow trees.
12.102 PNRAG has raised particular issues in relation to the proposed siting of the development. For example, Mr Scott-Brown suggests that it would be positioned closer than necessary to existing built development. However, in terms of the particular qualities of the site, itself, within this landscape character area, he could not point to a better site in the vicinity in landscape impact terms. Whilst there might be scope for positioning the developed area further away from the properties fronting Preston New Road, this would bring it closer to other nearby properties. I do not find there to be merit in PNRAG's criticism of the proposed siting of the developed area. Furthermore, it is difficult to see how the proposed works, whether monitoring or exploration, would affect any sense of separation between settlements by virtue of their contained nature and distance from villages such as Great Plumpton and Little Plumpton."
"The visual impact
12.117 The Appellant's position is that in terms of individual impact on residential receptors these would be both limited in number and located where any adverse views of the site are themselves limited. It accepts that the residential receptors along Moss House Lane at Plumpton Hall Farm, and along Preston New Road, would experience significant adverse effects. The significant effects would only occur during the construction, drilling, fracturing and initial flow testing phases. The visual effects of the drilling rig would be experienced intermittently for around 29 months out of the overall 6 year exploration phase.
12.118 As indicated above, Mr Maslen considers that potentially significant effects might arise for around 11 residential receptors at the drilling, hydraulic fracturing and initial flow testing phases. This is a greater number of residential receptors than has been identified by the Appellant. Having visited the site, and given consideration to this matter, I believe that these other residential properties that he mentions would also be likely to experience a substantial deterioration in their existing view which would be significant. However, even on the basis of around 11 residential receptors being affected in this way, the total number of residential receptors that would experience a significant visual impact remains low. The proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live.
12.119 Mr Maslen states that he would expect similar effects to arise from the subsequent extended flow testing phase for sensitive receptors. He submits that whilst the drilling rig would no longer be in place, associated fencing, infrastructure and ancillary equipment would remain as an incongruous, industrial element in otherwise rural views until any eventual restoration was undertaken.
12.120 I consider that there is a clear distinction to be made between the visual impact associated with the drilling, hydraulic fracturing and initial flow testing phases and the extended flow testing phase. During the latter phase the prominent vertical feature of the rigs would no longer be present. Although the Appellant acknowledges that there would occasionally be a service rig on the site at times during later stages this would be an infrequent and short-lived occurrence. I do not believe that the magnitude of change during this later phase would be such that the adverse effect would be significant. In my judgement, the significant effects would only arise during the earlier phases and would therefore be limited in their duration and would not be experienced throughout the temporary six year period.
12.121 There is also the matter of the impact upon users of the roads close to the site. Mr Maslen identified moderate adverse (but not significant) effects for receptors to two roads and the Moss House Lane fishing pond. The latter was also regarded by the Ryder Report as having a high sensitivity compared to the Appellant's assessment of medium sensitivity. The rural qualities of Plumpton Lane and Moss House Lane were clearly apparent when I visited the site. I agree that they are likely to have local value as walking or cycling routes. Furthermore, I agree with Mr Maslen's assessment of a 'Moderate Adverse' effect for sections of these roads during the drilling, hydraulic fracturing and flow testing phases."
"12.125 Although I recognise that these transport corridors should be attributed a greater sensitivity given their role in providing access to the Fylde Coast and Blackpool, I do not consider that more than a medium sensitivity should be attributed to them. Given the likely extent of deterioration of those views, I do not regard the overall impact upon them as being significant. There is no substantial evidence to support the suggestion that the fact that these views would be obtained by people going to and from Blackpool would materially detract from the overall attractiveness of the area as a tourist location. In my judgement, it is highly unlikely that that would be the outcome, particularly given the duration of the impact."
"Overall Conclusions – Landscape and Visual Impact PNREW
12.149 I conclude that the development would not require the removal of any significant existing landscape features and any landscape change would not be of a permanent nature. However, having regard to aesthetic and perceptual considerations, there would be a significant impact upon the landscape during the first phase of the development that would last about two and a half years. These significant landscape effects would be limited to a distance of up to around 1km from the site. There would be no material indirect adverse landscape effects on any neighbouring local landscape character areas.
12.150 The significant impact on the landscape would be short-term during the first phase of the development, although there would be some varying degree of impact for the duration of the temporary permission. This would be wholly reversible and the site would be fully restored after 75 months. The mitigation proposed is reasonable and would represent a positive contribution, as far as can be achieved, to the appearance of the site. The restoration proposals would reinstate the localised landscape characteristics, such that there would be no lasting change to landscape character.
12.151 Policy DM2 supports development that makes a positive contribution to matters such as landscape character, "where appropriate". It also indicates that this might be achieved through the quality of design, layout, form, scale and appearance of buildings and restoration within agreed limits, to a beneficial after use and the management of landscaping and tree planting. Given the nature of the development, there are obvious limitations on what can be achieved in terms of design, layout and appearance.
12.152 Nevertheless, having regard to the limited direct landscape impacts, and the proposed mitigation, I consider that the scheme incorporates measures that would at least serve to conserve and protect Lancashire's Landscape Character. The impacts on positive landscape features would not be lasting changes. The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with Policy CS5. Although there are landscape impacts that would cause demonstrable harm which cannot be eliminated, I am satisfied that they have been reduced to an acceptable level. The development would therefore be in accordance with Policy DM2.
12.153 PNRAG submits that the siting of the development would not be in keeping with the distinct landscape character types identified in the landscape strategy for Lancashire and it is therefore in conflict with Policy EP11. However, it is hard to envisage any shale gas development that could be sited without a degree of conflict with that strategy. As indicated above, I do not consider that this policy can be sensibly applied to these schemes.
12.154 Although there would be an adverse impact upon a 'valued' landscape, this particular landscape is valued only at local level and does not have the highest status of protection. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.
12.155 Whilst there would be some significant adverse visual effects, only a low number of residential receptors would experience effects of that magnitude. These significant effects would only arise during the drilling, fracturing and initial flow testing phase over a period of some 29 months. The mitigation proposed is reasonable and the limitations in what can be achieved in that respect are acknowledged. There would be additional adverse visual impacts, including upon users of transport corridors over and above what has been identified by the LVIA. However, these would not amount to significant impacts. There would be little scope for any cumulative visual issues between the Preston New Road and Roseacre Wood during this phase, or with any other developments within the area.
12.156 Policy DM2 supports minerals development where it can be demonstrated that the proposals would, where appropriate, make a positive contribution to the residential amenity of those living nearby. There are examples set out showing how this might be achieved. In terms of siting of the development, PNRAG's witness could not point to a better location for the developed part of the site. The development would be sited in a location where only a relatively small number of residential properties would experience a significant adverse impact. The reduction in height of the drill rig to 36m would serve to keep the development as low as practicable to minimise visual intrusion. A lighting scheme would be in place and other mitigation is proposed including the colour of the fencing and other structures. It seems to me that all appropriate measures to mitigate the impact on visual amenity have been included within the scheme. There would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that there would not be conflict with Policy DM2.
12.157 Based on the evidence given above in relation to the reasons for refusal pertaining to both landscape and visual issues, and my inspections of the site and surroundings, I conclude that the development at Preston New Road would not 'cause an unacceptable adverse impact on the landscape' nor would it 'result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents'. The landscape and visual impacts associated with the scheme would not be unacceptable."
"12.590 The Appellant's position is that where there is another regulatory regime that deals with a matter then the planning decision-taker should rely on that regime and assume that it will operate appropriately. They submit that this is highly relevant to concerns raised in the evidence about environmental pollution, flowback material and impact on health. These matters have been dealt with in great detail through the environmental permitting regime, and would be subject to intensive monitoring and regulation as part of that regime, if and when the proposals are implemented. There is no basis for the Secretary of State to go behind those regimes, and do anything other than assume that they would operate effectively.
12.591 The case of R (Frack Free Balcombe Residents Association) v West Sussex County Council is relevant in describing the role and weight to be afforded to other regulatory regimes in the planning decision process. Mr Justice Gilbart concluded that: "In my judgment there is ample authority to the effect that the Planning Authority may in the exercise of its discretion consider that matters of regulatory control could be left to the statutory regulatory authorities to consider. There was ample material before it that all matters of concern could be and would be addressed…". He continues: "…the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant's members have about the effects on the environment. The Claimant and its members' concerns are in truth not with the planning committee's approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee."
12.592 Whilst PPGM makes it clear that on-site storage and the traffic impact of the movement of water are relevant planning issues, there is disagreement between the parties as to whether the impact of development on available capacity is a matter for the planning decision-taker. PPGW, para 049, and PPGM, para 112, are relevant to the consideration of this matter. FoE submits that whilst the decision-maker should assume that the waste disposal regime will operate effectively, this does not give rise to an irrebuttable presumption.
12.593 Such an approach would, indeed, be consistent with the Frack Free Balcombe case. Mr Justice Gilbart did not, in that case, say that there is an irrebuttable presumption that matters which are addressed to any extent by a regulator cannot be taken into account by the planning decision-maker."
"12.655 As regards the hazards associated with potential exposure to air and water pollutants, the Appellants point out that such matters would be strictly controlled by the EA through the permitting system. This would ensure that no levels which could have an impact on human health would be reached. The Annex to the WMS provides support for that position. In the light of para 122 of the NPPF, and the Frack Free Balcombe case, I am content that it could be assumed that the regulatory system would operate effectively to control such emissions. There would be no health impacts resulting from these matters.
12.656 Although Dr McCoy referred to the potential health and wellbeing impacts of matters such as noise, smells, intrusive lighting and traffic. He deferred to the evidence of experts on those topics to the Inquiry. He identified noise and other nuisances as being the most likely causes of negative direct impacts on human health. I have given consideration to noise, visual amenity, and other potential impacts upon health and wellbeing elsewhere in this report. I do not believe that there would be additional negative health and wellbeing impacts on nearby communities associated with the matters raised by Dr McCoy.
12.657 FoE submits that the potential adverse impacts associated with the matters outlined above would be exacerbated by the anxieties arising from the public perception of risk related to these developments. It points to there being a significant degree of uncertainty in the scientific literature about the potential health effects of fracking and the lack of trust in the oil and gas industry generally and Cuadrilla in particular. Dr McCoy also pointed out the feelings of anger and helplessness caused by the view that shale gas at production would be forced onto local communities by national Government policy.
12.658 The Appellants acknowledge that local residents and wider members of the public are concerned and worried about the development for a variety of reasons. They point out that many of the fears are based on, or reinforced by, information which has been disseminated from reports of US experiences. These sites would be closely monitored and the ES would check and control emissions. Whatever the US experience, the regulatory regime in the UK is different. There has been much criticism of the capabilities of the UK regulatory regime by Interested Persons during the course of the Inquiry. However, their evidence does not lead me to find that the regulatory regime could not be relied upon to operate effectively in these cases.
12.659 The Appellants accept that public concern is capable of being a material planning consideration and refer to the case of West Midlands Probation Committee v SSE and Walsall MBC. However in this instance, the processes would be regulated and all pathways that could potentially impact upon human health would be monitored and appropriately controlled. Given these factors, I agree with the Appellants that little weight should be given to these concerns. I do not consider the expressed fear and anxiety can be regarded as being reasonably engendered or a justifiable emotional response to the projects in the light of the level of monitoring and controls that would be imposed upon the proposed activities.
12.660 On socio-economic effects, Dr McCoy asserts that a number of potential impacts might arise through commercial shale gas production at scale. The same applies to his comments on climate change and health. He makes clear that his climate change concerns are much broader in scope than the communities and environment in the immediate vicinity of the sites and the surrounding areas of Lancashire.
12.661 These appeals do, of course, relate to shale gas exploration rather than commercial shale gas production at scale. The health impacts associated with these exploratory works appeals should be distinguished from those which might be associated with production at scale. The available evidence does not support the view that there would be profound socio-economic impacts or the climate change impacts on health envisaged by Dr McCoy associated with these exploratory works.
12.662 I am satisfied that the Appellants have demonstrated, by the provision of appropriate information, that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level. The proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy."
"12.674 For FoE, Professor Anderson puts forward three headline conclusions. First, he submits that under the UK existing carbon budget, gas can only have a marginal and rapidly declining role in generating electricity post-2030. Secondly, he contends that taking the Preston New Road and Roseacre Wood exploration works together as one "project", the emissions from the proposals as a stand-alone and non-productive project would be very high and, thirdly, he asserts that if the UK is to abide by the explicit commitment of the Paris Agreement, then there is no viable emission space within the UK's carbon budget for shale gas to fulfil even a transitional role. …
12.676 On the first and third headline conclusions raised by Professor Anderson, the Appellants draw support from current national policy and the WMS. They state that this makes clear the Government's position on the need for shale gas extraction as part of its policy response to climate change and the Government's legal and international obligations. The Government supports the exploration for and extraction of shale gas as part of the UK's response to climate change.
12.677 I have already given consideration to the weight to be attached to the WMS in the light of the Paris Agreement and the Chancellor's announcement in relation to CCS. As indicated above, I consider that the way in which the Government chooses to respond and adapt its various energy policies in the light of these two events is a matter it would need to consider and, if thought to be necessary, addressed through policy development. At present, the WMS represents the Government's position in relation to the need for shale gas exploration and the need for gas to support its climate change target. I agree with the Appellants that the issues raised by Professor Anderson as to how shale gas relates to the obligations such as those set out in the Paris Agreement, and the Intergovernmental Panel on Climate Change (IPCC) carbon budgets, are a matter for future national policy and not for these appeals.
12.678 On the second headline conclusion, Professor Anderson states that the proposal is not a stand-alone project but instead is an important and provisional phase of the UK's fledgling shale has industry. He submits that the emissions caused by commercial shale gas production, and the timing of full UK shale gas production are such that shale gas could have no appreciable role in the UK's energy mix. He contends that the development of a UK shale gas industry would be incompatible with its climate change commitments. However, it again seems to me that those are matters for future consideration by the Government in its development of energy policy. For the purposes of these appeals, the analysis should be limited to a consideration of the project emissions during construction, operation and decommissioning, together with cumulative impacts as assessed by the ESs within the framework set by national and local policies…
12.682 It seems to me that in terms of both the Lancashire Climate Change Strategy annual emissions and the overall UK emissions, the projects' would represent a very small percentage of the total emissions. That would remain the case even if the requirements of the Paris Agreement were to be taken into account. In the light of the support provided by the national policy for shale gas exploration, I believe that those emissions would be entirely reasonable and fully justified. The ES assessment for each exploration site concludes that the project's potential contribution to national GHG emissions would be negligible. In the light of the ES assessment, I do not consider that the proposed development would have any significant impact upon the national planning policy objectives relating to climate change."
"12.686 I conclude that the projects would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. I do not consider that para 93 NPPF should be read in isolation, or applied out of context. Taking an overall view of national policy, there can be no doubt that shale gas is seen as being compatible with the aim to reduce GHG by assisting in the transition process over the longer term to a low carbon economy. I am satisfied that the Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that could cause demonstrable harm would be reduced to an acceptable level and that the projects represent a positive contribution towards the reduction of carbon. The proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy."
"Appeals A, B, C and D
12.786 The starting point is s38(6) of the Planning and Compulsory Purchase Act 2004 and s70(2) of the Town and Country Planning Act 1990. The decisions should be made in accordance with the Development Plan unless material considerations indicate otherwise.
12.787 The Development Plan includes the policies of the CS, the JLMWLP and the saved policies of the FBLP. Where policies in the FBLP are capable of sensible application to minerals development, they can reasonably be applied. The Development Plan is not absent, silent or out-of-date. The presumption set out in para 14 NPPF to grant planning permission in those circumstances does not therefore apply.
12.788 The NPPF explains that the policies in paras 18 to 219 of that document, taken as a whole, constitute the Government's view of what sustainable development in England means for the planning system. The NPPF provides strong support for facilitating the sustainable use of minerals.
12.789 PPGM, para 91, refers to the "pressing need to establish – through exploratory drilling – whether or not there are sufficient recoverable quantities of unconventional hydrocarbons such as shale gas and coalbed methane."
12.790 The WMS sets out the Government's view that there is a national need to explore and develop shale gas and oil resources in a safe, and sustainable and timely way, and the steps that it is taking to support this need. The WMS should be taken into account in planning decisions and national policy recognises the need for shale gas exploration. That need is a material consideration of great weight in these appeals. However, there is no such Government support for shale gas development if that would be unsafe and unsustainable.
Appeal A – Preston New Road Exploratory Works (PNREW)
12.791 The significant landscape impacts would be limited to a distance of up to around 1km from the site. They would be short-term during the first phase of the development, although there would be some varying degree of impact for the duration of the temporary permission. This would be wholly reversible and the site would be fully restored after 75 months. The mitigation proposed is reasonable and would represent a positive contribution, as far as can be achieved, to the appearance of the site.
12.792 Although there would be an adverse impact upon a 'valued' landscape, this particular landscape is valued only at local level and does not have the highest status of protection. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.
12.793 The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with CS Policy CS5. Although there are landscape impacts that would cause demonstrable harm which could not be eliminated, they would be reduced to an acceptable level. The development would therefore be in accordance with JLMWLP Policy DM2. FBLP Policy EP11 cannot sensibly be applied to this scheme. Given the temporary nature of the development, and the mitigation and restoration proposals, there would be no conflict in the long-term with the aim of the NPPF to conserve and enhance the natural environment.
12.794 There would be some significant adverse visual effects but only a low number of residential receptors would experience effects of that magnitude. These significant effects would only arise during the drilling, fracturing and initial flow testing phase over a period of some 29 months. The proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live. The mitigation proposed is reasonable and the limitations in what could be achieved in that respect are acknowledged. There would be additional adverse visual impacts, including upon users of transport corridors over and above that which has been identified by the LVIA. However, these would not amount to significant impacts. There would be little scope for any cumulative visual issues between the Preston New Road and the Roseacre Wood sites during this phase, or with any other developments within the area.
12.795 All appropriate measures to mitigate the impact on visual amenity have been included within the scheme. There would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that the scheme would be in accordance with JLMWLP Policy DM2.
12.796 The proposed development would not 'cause an unacceptable adverse impact on the landscape' nor would it 'result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents'. The landscape and visual impacts associated with the scheme would not be unacceptable…
Public health and public concern
12.805 The hazards associated with potential exposure to air and water pollutants would be strictly controlled by the EA through the permitting system. This would ensure that no levels which could have an impact on human health would be reached. In the light of para 122 of the NPPF, and the Frack Free Balcombe case, it can be assumed that the regulatory system would operate effectively to control such emissions. There would be no material adverse health impacts resulting from these matters…
12.808 The Appellants have demonstrated, by the provision of appropriate information, that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level. The proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy.
12.809 The project would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. Taking an overall view of national policy, there can be no doubt that shale gas is seen as being compatible with the aim to reduce GHG by assisting in the transition process over the longer term to a low carbon economy. The Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm would be reduced to an acceptable level and that the projects would represent a positive contribution towards the reduction of carbon. The proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy…
Overall Conclusion – Appeal A
12.821 Although the exploration works would be temporary, it must be recognised that they would extend over a number of years. In assessing the effects of the scheme upon local residents, the duration of any impacts that they would experience has been borne in mind. Whilst there would be landscape and visual impacts that would cause demonstrable harm which could not be eliminated, they would be reduced to an acceptable level. The same applies to light pollution. As regards noise, the imposition of the 39 dB night-time limit would not entirely eliminate all adverse effects but it would reduce them to an acceptable level. No significant adverse noise impact would result. Safe and suitable access to the site could be achieved. The various other potential impacts of the proposed development have also been considered including cumulative impacts and I am satisfied they would be reduced to an acceptable level.
12.822 Since it has been demonstrated to my satisfaction, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm could be eliminated or reduced to acceptable levels the development would be in accordance with JLMWLP Policy DM2. The proposed development could be controlled in the manner sought by CS Policy CS5. The restoration of the site at the end of the temporary period in a manner appropriate to the Landscape Character of the locality would be in accordance with that policy.
12.823 Subject to the imposition of appropriate planning conditions, the development would also be in accordance with CS Policies CS1, and C5 and objectives together with FBLP Policies EP12, EP15, EP16, EP17, EP23, EP24, EP26, EP27 and EP28. Although there would be compliance with those relevant policies of the FBLP, there would be apparent conflict with Policies SP2 and EP11. However, those are policies which could not sensibly be applied to this form of minerals development. I am satisfied that the proposal would be in accordance with the Development Plan taken as a whole. It should therefore be permitted unless material considerations indicate otherwise.
12.824 Turning to national policy, the NPPF explains that there are three dimensions to sustainable development: economic, social and environmental. Having assessed the development against the policies set out in paras 18 to 219 of the NPPF I consider that it represents sustainable development. Given that the development would be safe and sustainable, it would have the support of the WMS. The national need for shale gas exploration is a factor of great weight in support of this appeal.
12.825 There have been very many objections raised to the proposed development by a large number of people. Whilst I have given careful consideration to the objections raised, I am satisfied that the matters of concern could be satisfactorily controlled by planning conditions or by other regulatory regimes. As such, they can only be attributed little weight in the planning balance.
12.826 Some of the issues raised have related to what might occur should shale gas production at scale take place over the wider area of the Fylde. The appeal proposal does, of course, only seek a temporary planning permission for exploratory works. In the light of PPGM, para 120, this appeal should be considered on its own merits and account should not be taken of hypothetical future activities. Any future proposal for production would require a further application and assessment. Likewise, little weight is attributed to the wider economic benefits that might be derived from shale gas production on a large scale.
12.827 Having regard to the mitigation that could be secured by planning condition, the degree of interference with the rights of individuals in this case would be necessary in the public interest and proportionate.
12.828 I conclude that there are no other material considerations that indicate other than that the development the subject of Appeal A should be permitted in accordance with the Development Plan, subject to the imposition of appropriate planning conditions. I consider that Appeal A should be allowed and planning permission granted subject to planning conditions."
The Defendant's Decision
"Should an onshore petroleum industry be established in the UK and grow quickly, this would have the potential for significant impact on UK emissions. In order to ensure that these are manageable within carbon budgets, it is necessary that increased UK production does not feed through into increased unabated consumption of fossil energy; that emissions associated with production are strictly limited; and that the production emissions that do occur are offset by actions to reduce emissions elsewhere in the economy in order to stay within overall carbon budgets.
Our assessment is therefore that onshore petroleum extraction on a significant scale is not compatible with UK climate targets unless three tests are met:
• Test 1: Well development, production and decommissioning emissions must be strictly limited. Emissions must be tightly regulated and closely monitored in order to ensure rapid action to address leaks.
- A range of technologies and techniques to limit methane emissions should be required, including 'reduced emissions completions' (also known as 'green completions') and liquid unloading mitigation technologies (e.g. plunger lift systems) should these be needed;
- A monitoring regime that catches potentially significant methane leaks early is essential in order to limit the impact of 'super-emitters';
- Production should not be allowed in areas where it would entail significant CO2 emissions resulting from the change in land use (e.g. areas with deep peat soils);
- The regulatory regime must require proper decommissioning of wells at the end of their lives. It must also ensure that the liability for emissions at this stage rests with the producer.
• Test 2: Consumption – gas consumption must remain in line with carbon budgets requirements. UK unabated fossil energy consumption must be reduced over time within levels we have previously advised to be consistent with the carbon budgets. This means that UK shale gas production must displace imported gas rather than increasing domestic consumption.
• Test 3: Accommodating shale gas production emissions within carbon budgets. Additional production emissions from shale gas wells will need to be offset through reductions elsewhere in the UK economy, such that overall effort to reduce emissions is sufficient to meet carbon budgets."
"26. The Secretary of State has considered the relevance of the Fylde Borough Local Plan. For the reasons given at IR12.15-12.31, he agrees with the Inspector at IR12.30 that where policies in the FBLP are capable of sensible application to minerals development, then they can reasonably be applied. He further agrees at IR12.31 that Policy EP11 cannot sensibly be applied to these schemes."
"Need – national policy and the Written Ministerial Statement (WMS) – Appeals A, B, C and D
28. The Secretary of State has considered the weight that should be attached to the need for shale gas exploration and the WMS. For the reasons given at IR 12.34-12.52, he agrees with the Inspector at IR12.50 that the factors identified by Friends of the Earth do not undermine or materially reduce the weight to be attributed to the WMS. He further agrees that the need for shale gas exploration is a material consideration of great weight in these appeals, but that there is no such Government support for shale gas development that would be unsafe and unsustainable (IR12.52). The Secretary of State also considers that the need for shale gas exploration set out in the WMS reflects, among other things, one of the Government's objectives in the WMS, in that it could help achieve secure energy supplies.
29. How the Government may choose to adapt its energy policies is a matter for possible future consideration. If thought necessary, this could be addressed through future national policy. These are not matters that fall to be considered in these appeals."
"Public health and public concern
34. The Secretary of State has considered carefully the evidence and the representations that were put forward in respect of public health and public concern (IR12.636-12.662). He agrees with the Inspector for the reasons given at IR12.655 and IR12.658 that it could be assumed that the regulatory regime system would operate effectively to control emissions and agrees that there would be no health impacts arising from potential exposure to air and water pollutants. He has considered the potential health impacts of public concern. He agrees with the Inspector at IR12.659 that the processes would be regulated and all pathways that could potentially impact upon human health would be monitored and appropriately controlled, and therefore considers these concerns carry little weight in the planning balance. He agrees with the Inspector at IR12.661 that the available evidence does not support the view that there would be profound socio-economic impacts or climate change impacts on health associated with these exploratory works. He notes that there is no outstanding objection raised by Public Health England to the proposed development on public health impact grounds (IR12.644). Overall he agrees with the Inspector that the Appellants have demonstrated by the provision of appropriate information that all potential impacts on health and wellbeing associated with the projects would be reduced to an acceptable level, and further agrees that the proposed development would be in accordance with JLMWLP Policy DM2, CS Policies CS5 and CS9 and relevant national policy (IR12.662).
35. The Secretary of State has considered the representations on climate change which were made by Friends of the Earth and other parties at the inquiry, and has also taken into account the responses to the reference back exercise (paragraph 10 above). For the reasons given at IR12.673-12.678, he agrees with the Inspector's conclusion that the issues raised as to how shale gas relates to the obligations such as those set out in the Paris Agreement and the Intergovernmental Panel on Climate Change carbon budgets are a matter for future national policy and not for these appeals (IR12.677). The Secretary of State considers that this is also the case for the Government's approach to Carbon Capture and Storage. He further agrees at IR12.678 that for the purposes of these appeals, the analysis should be limited to a consideration of the project emissions during construction, operation and decommissioning, together with cumulative impacts as assessed by the Environmental Statements within the framework set by national and local policies.
36. The Secretary of State considers that the need for shale gas exploration set out in the WMS reflects, among other things, the Government's objectives in the WMS, in that it could help to achieve lower carbon emissions and help meet its climate change target. The Secretary of State has gone on to consider the question of emissions arising from these proposals. For the reasons given at IR12.679, he agrees with the Inspector that there has been no material error in the Environmental Statement estimate of methane emissions. For the reasons given at IR12.682, he further considers that in the light of the support provided by the national policy for shale gas exploration, the emissions likely to arise from the appeal proposals would be entirely reasonable and fully justified (IR12.682).
37. Overall, the Secretary of State agrees with the Inspector's conclusion at IR12.686 that the projects would be consistent with the NPPF aim to support the transition to a low carbon future in a changing climate. He further agrees that the Appellants have demonstrated, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm would be reduced to an acceptable level and that the projects represent a positive contribution towards the reduction of carbon, and that the proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy."
"Landscape and visual impact
50. The Secretary of State has given very careful consideration to the effect that the proposed development would have on the character and appearance of the surrounding rural landscape and the visual amenities of local residents. He agrees with the Inspector at IR12.69 that it is correct to distinguish between the first and second phases of the development in terms of the duration of the landscape impacts that are likely to be of the greatest concern.
51. For the reasons given at IR12.81-12.85, the Secretary of State agrees with the Inspector at IR12.85 that the landscape does have some value at local level and the appeal site displays a number of positive characteristics identified by the Lancashire Landscape Strategy. For those reasons, he agrees that it is a 'valued' landscape in NPPF terms.
52. For the reasons given at IR 12.86-12.96, the Secretary of State agrees with the Inspector at IR12.95 that the combined effect of the changes would result in a significant impact on the immediate landscape that would be perceived from a wider area of about 1km. For the reasons given at IR12.97-98 and IR12.126, the Secretary of State agrees with the Inspector's conclusion at IR12.98 that with suitable controls to reduce upward light pollution, there would be very limited additional impact on the landscape due to lighting. He further agrees, for the reasons given at IR12.99-12.101, that the adverse landscape effects of greatest significance would be experienced during the first phase of the development and this would be a short-term impact. He has taken into account that the particular effects associated with the proposed development would be reversed at the end of the temporary six-year period, and that any localised changes to landscape components would be fully remediated (IR12.101).
53. When considering the visual effects of the proposal, the Secretary of State has taken into account the Inspector's assessment of the photomontages which have been provided by parties (IR12.115-12.116). He agrees that the photomontages prepared by Mr Maslen provide a more reliable representation of what would occur (IR12.116), and has taken those photomontages into account in reaching his conclusion.
54. For the reasons given at IR12.117-12.120, the Secretary of State agrees with the Inspector that the proposal would not affect the outlook of any residential property to such an extent that it would be so unpleasant, overwhelming and oppressive that it would become an unattractive place to live (IR12.118). He agrees that the significant effects would only arise during the earlier phases and would therefore be limited in their duration and would not be experienced throughout the temporary six-year period (IR12.120). He has considered the Inspector's assessment of the impact on road users at IR12.121-12.126. He agrees with her conclusion that there would be a moderate adverse visual effect for sections of local roads during the drilling, hydraulic fracturing and flow testing phases (IR12.121). He agrees that there would not be a significant impact on transport corridors, and that it is highly unlikely that the impact would materially detract from the overall attractiveness of the area as a tourist location (IR12.125).
55. For the reasons given at IR12.127, the Secretary of State agrees with the Inspector's conclusion that any cumulative landscape and visual effects would be very limited and would certainly not be of any significance.
56. The Secretary of State has considered the implications of imposing a condition limiting the height of the drilling rig to 36m. He has taken into account the operator's need for flexibility as well as the potential benefits in terms of visual amenity. For the reasons given at IR12.132-12.137, he agrees with the Inspector's conclusion at IR12.137 that there is no substantial evidence to support the view that there would be any genuine difficulties or undue burden placed upon Cuadrilla in gaining access to a 36m rig. For the reasons given at IR12.138-12.141, he agrees with the Inspector that the change to residential receptors in close proximity to the site would be exceedingly obvious and that the difference would constitute a distinct and real improvement in their visual amenity (IR12.141). He further agrees, for the reasons given at IR12.142-12.148, that such a condition would meet all the tests set out in the NPPF, paragraph 206, and would be in accordance with development plan policy (IR12.148).
57. The Secretary of State has considered the Inspector's overall conclusions on landscape and visual impact. For the reasons given at IR12.149-12.153, he agrees with the Inspector at IR12.152 that although there are landscape impacts that would cause demonstrable harm which cannot be eliminated, they have been reduced to an acceptable level and the development would therefore be in accordance with Policy DM2. He further agrees at IR12.154 that there would be no conflict in the long term with the aim of the NPPF to conserve and enhance the natural environment. For the reasons given at IR12.70 and IR12.155-12.156, he agrees with the Inspector at IR12.156 that there would be harm arising from the visual impact associated with the development but this has been reduced to an acceptable level such that there would not be conflict with Policy DM2. Overall he agrees with the Inspector's assessment at IR12.157 that the landscape and visual impacts associated with the scheme would not be unacceptable."
"Planning balance and overall conclusions
66. For the reasons given above and at IR12.821-12.823, the Secretary of State considers that the proposal would be in accordance with the development plan taken as a whole. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
67. As regards national policy, the Secretary of State considers that as assessed against the policies set out in paragraphs 18 to 219 of the NPPF, the proposal represents sustainable development. He considers that the development would have the support of the WMS.
68. He considers that the national need for shale gas exploration is a factor of great weight and that the local economic benefits of the proposal carry little positive weight in support of this appeal.
69. He has given careful consideration to the objections raised, but is content that the matters of concern could be satisfactorily controlled by planning conditions or by other regulatory regimes, and as such, they can be attributed little negative weight in the planning balance.
70. The Secretary of State concludes that there are no material considerations indicating other than that the Appeal A development should be permitted in accordance with the development plan, subject to the imposition of appropriate planning conditions. He considers that Appeal A should be allowed and planning permission granted subject to the planning conditions set out at Annex A below. "
The First Claimant's Grounds 1, 2, 3 and 5
"in accordance with policy CS5 and CS9 of the Core Strategy developments will be supported for minerals or waste developments where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that the proposals will, where appropriate, make a positive contribution to:…
- Residential amenity of those living nearby."
First Claimant's Grounds 1, 2, 3 and 5: law and conclusions
"18. In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as "a proper interpretation" of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a "proper interpretation" of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.
21. A provision in the development plan which requires an assessment of whether a site is "suitable" for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word "suitable", in the policies in question, means "suitable for the development proposed by the applicant", or "suitable for meeting identified deficiencies in retail provision in the area", is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed."
"5.—(1) For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are—
(a) any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following—
(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) the allocation of sites for a particular type of development or use;
(iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and
(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission…
(2) For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are—
(a) any document which—
(i) relates only to part of the area of the local planning authority;
(ii) identifies that area as an area of significant change or special conservation; and
(iii) contains the local planning authority's policies in relation to the area; and
(b) any other document which includes a site allocation policy."
The role, function and objective of a policy in the development plan as a whole will form part of the context for its interpretation.
"The law summarised
35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.
36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"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"
"development for minerals or waste management operations will be supported where it can be demonstrated to the satisfaction of the mineral and waste planning authority, by the provision of appropriate information, that all material, social, economic or environmental impacts that would cause demonstrable harm can be eliminated or reduced to acceptable levels." (emphasis added)
"Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be secured. National planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems. As is explained in paragraph 1 of the Government's publication Planning Policy Guidance Notes, the need to take account of economic, environmental, social and other factors requires a framework which provides consistent, predictable and prompt decision making."
The First Claimant's Ground 4
The First Claimant's Ground 4: law and conclusions
"Statement of common ground
14.—(1) The local planning authority and the applicant shall—
(a)together prepare an agreed statement of common ground; and
(b)ensure that the Secretary of State receives it and that any statutory party receives a copy of it not within 6 weeks of the starting date.
(2) The local planning authority shall afford to any person who so requests, a reasonable opportunity to inspect, and where practicable, take copies of the statement of common ground sent to the Secretary of State.
(3) For the purposes of the previous paragraph an opportunity shall be taken to have been afforded to a person where the person is notified of-
(a)publication of the statement of common ground on a website,
(b)the address of the website,
(c) the place on the website where the document may be accessed, and how it may be accessed"
"62 From reviewing the authorities I derive the following principles:
i) Any party to a planning inquiry is entitled (a) to know the case which he has to meet and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.
ii) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the Inspector's decision.
iii) The 2000 Rules are designed to assist in achieving objective (i), avoiding pitfall (ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness.
iv) A rule 7 statement or a rule 16 statement identifies what the Inspector regards as the main issues at the time of his statement. Such a statement is likely to assist the parties, but it does not bind the Inspector to disregard evidence on other issues. Nor does it oblige him to give the parties regular updates about his thinking as the Inquiry proceeds.
v) The Inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the Inspector expressly states that they need not do so.
vi) If a main party resiles from a matter agreed in the statement of common ground prepared pursuant to rule 15, the Inspector must give the other party a reasonable opportunity to deal with the new issue which has emerged."
"84. Mr Cahill's submission was essentially that, no matter what transpires at the inquiry, absent a formal statement or other indication by the Inspector, it is procedurally unfair for the Inspector to rely on issues which have not been identified as main issues in dispute in the Rule 7 and 16 statements. The starting point of my explanation of why I reject this submissions is a general proposition about the nature of the "right to be heard" limb of the common law principles of natural justice or procedural fairness.
85. Provided that certain factors are borne in mind, it does not generally matter whether what is at issue is characterised as "natural justice" or "procedural fairness". The first of those factors is that it is a commonplace that in the context of administrative decision-making the ascertainment of what procedures are required is acutely sensitive to context and the particular factual situation. Fairness is thus a flexible concept, as well as, of course, being subject to any particular requirements in primary and secondary legislation: see R (L) v West London Mental Health NHS Trust  EWCA 47 at , citing inter alia R v Secretary of State for the Home Department, ex p Doody  1 AC 531, at 560 (per Lord Mustill). Here the relevant legislative and policy framework is contained in the 2000 Regulations and PINS 01/2009.
86. Secondly, the term "fairness", when first used, was a signal that, although the reach of the "right to be heard" limb of the principle of natural justice had been expanded to new situations, the procedures required in those situations might be less onerous and less formal because of the nature of the decision that is to be made. But, although the precise content of the procedure required will depend on the particular context and circumstances, the underlying principle is of general applicability: Bushell v Secretary of State for the Environment  AC 75 at 95B – C per Lord Diplock; Lloyd v McMahon  AC 625 at 702 per Lord Bridge; and Craig, Administrative Law 6th ed., (2008) at 12-009 – 12-010.
87. Thirdly, it is important to identify what the "right to be heard" limb of the common law principle gives the individual affected. In R (Gul) v Secretary of State for Justice  EWHC 373 (Admin) at , I stated that:
"it is clear from decisions in the last 60 years that what is required is an opportunity to be heard, an opportunity to participate in the procedure by which the decision is made."
I gave as examples the classic statement by Denning LJ in Abbott v Sullivan  1 KB 189 at 198 and the recent statement by Lord Reed in Osborne v Parole Board  UKSC 61 at . The decisions to which my Lord has referred and which I discuss briefly at  –  show that this is also the broad position in the context of planning inquiries.
88. The question is thus whether Hopkins had a reasonable opportunity to put its case on sustainability and character and development at the inquiry. As my Lord has explained, extensive evidence was adduced by the main parties and others in the inquiry on the issue of the sustainability of the development in the sense that term is used in the National Planning Policy Framework ("NPPF"). The NPPF regards sustainable development as "a golden thread running through both plan-making and decision-taking" and states (paragraph 14) that "a presumption in favour of sustainable development lies at its heart". At the outset of the appeal the Council made it clear that it relied on lack of sustainability as a reason for resisting the appeal although this was not one of the reasons it had given for refusing the application for planning permission. As to character and appearance, a number of third party objectors raised this issue before the Inspector...
90. The authorities on planning inquiries considered by my Lord show that in this context what is needed is knowledge of the issues in fact before the decision-maker, the Inspector, and an opportunity to adduce evidence and make submissions on those issues: see Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions  EWHC 77 (Admin) at  and R (Tatham Homes Ltd) v First Secretary of State of State  EWHC 3538 (Admin), reported at  JPL 185."
"17.— Procedure after inquiry
(1) After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations…
(4) When making his decision the Secretary of State may disregard any written representations, evidence or any other document received after the close of the inquiry."
Dr Wolfe on behalf of the first claimant relied upon Rule 17(4) which would have precluded the submission of further material to the Secretary of State after the close of the inquiry.
The Second Claimant's Ground 1
"39. Following completion of these exploration phases, the well pad and associated surface works may either be taken on in to production, subject to Cuadrilla obtaining all necessary additional and further planning and permitting consents, or decommissioned and the site restored to its current agricultural use."
"Should mineral planning authorities take account of the environmental effects of the production phase of hydrocarbon extraction at the exploration phase?
Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.
When determining applications for subsequent phases, the fact that exploratory drilling has taken place on a particular site is likely to be material in determining the suitability of continuing to use that site only insofar as it establishes the presence of hydrocarbon resources.
Paragraph: 120 Reference ID: 27-120-20140306"
The Second Claimant's Ground 1: law and conclusions
"3(4) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."
"a description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development…"
"19 After its administrative appeal against the above-mentioned decision of 17 January 2005 had been rejected by decision of 23 May 2005, the claimant brought an action before the referring court for annulment of the latter decision. Like the administrative appeal, the action for annulment is based, inter alia, on a plea alleging infringement of the national rules on environmental impact assessment applicable to such projects and which derive in part from the amended Directive.
20 It is apparent from the order for reference that the Madrid City Council has split the larger "Madrid calle 30" project into 15 independent sub-projects, treated separately, only one of which concerns alteration or rehabilitation work on any existing road on a section exceeding five kilometres, the threshold at which the regional rules applicable make a project subject to an environmental impact assessment, while the larger project taken as a whole substantially exceeds that threshold. It is also clear from the referring court's explanations that, according to certain estimates, the execution of the overall scheme will lead to an increase in traffic of nearly 25% and will involve different kinds of works in the urban area surrounding the M-30."
"39 In that regard, in the same way as Directive 85/337 , the amended Directive adopts an overall assessment of the effects of projects or the alteration thereof on the environment. It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works: see, as regards Directive 85/337 , Abraham's case, paras 42 and 43….
44 Last, as the Court of Justice has already noted with regard to Directive 85/337 , the purpose of the amended Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of article 2(1) of the amended Directive: see, as regards Directive 85/337 , Commission of the European Communities v Ireland (Case C-392/96)  ECR I-5901 , para 76 and Abraham v Région Wallonne (Case C-2/07), 28 February 2008 , para 27.
45 As regards the projects at issue in the main proceedings, it is clear from the order for reference that they are all part of the larger project "Madrid calle 30". It is for the referring court to verify whether they must be dealt with together by virtue, in particular, of their geographical proximity, their similarities and their interactions.
46 Therefore, the answer to the first three questions must be that the amended Directive must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by point 7(b) or (c) of Annex I to the Directive, or where they are projects covered by point 10(e) of Annex II or the first indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment. "
"21 No authority was cited for the proposition that the connection between two developments must be an operational or functional one for the environmental effects of one of the developments to be part of the cumulative effects of the other. The answer to the question—what are the cumulative effects of a particular development—will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link. I have set out the Committee's Summary Reasons for granting planning permission and the relevant passages in the Report (in  and  above]). It is plain that the Committee did not consider the planning merits of the Freight Distribution Centre in isolation without regard to any of its cumulative effects. Considered in isolation the Freight Distribution Centre was not in accordance with the Development Plan. The "development as a whole" was (rightly or wrongly, see  and  below) regarded by the Committee as "policy compliant" only because one of the cumulative effects of the development would be the "delivery" of the airport works through the mechanism of the s.106 Agreement. The s.106 Agreement did not permit the airport works, nor did it compel the Interested Party to carry them out, but it did ensure that the Freight Distribution Centre could not lawfully be developed (built and occupied) in isolation, it could be developed only if its cumulative effects included the carrying out of the airport works.
22 When Mr Mould QC was asked to explain the apparent change in position between the Planning Officer's advice in para.5.162 of the report—that the development for which permission was being sought was not in accordance with the Development Plan, but would enable improvements to the airport which would be a considerable benefit which could override the harm resulting from that conflict with policy (in  above)—and the advice in para.5.171 of the Report—that if members accepted that by linkage with the intended s.106 Agreement approval of the development would be the facilitator of the airport investment "the application would become policy compliant in its full sense and would not require to be referred to the Secretary of State" (see  above), he replied that in para.5.162 the Planning Officer had set out his own view, whereas in para.5.172 he had recognised that it was open to members to form a different view: that if they were satisfied that the terms of the s.106 Agreement would provide a sufficient degree of commitment on the part of the Interested Party to bring forward a scheme of works for the rejuvenation of the airport, then the commitment to facilitate these works would be sufficient to make the application for planning permission compliant with the Development Plan.
23 Whether or not this was an adequate justification for the Committee's conclusion that the proposed development did comply with the Development Plan, it is difficult to see how the Interested Party's commitment in the s.106 Agreement to bring forward the airport works could on the one hand have been sufficient to ensure that, as the Committee said in the Summary Reasons for granting permission, "the development as a whole" could be regarded as policy compliant for the purposes of the Development Plan; but on the other hand have been insufficient to ensure that the bringing forward of the airport works would be part of the cumulative effects of the development for the purposes of the EIA Regulations …
28 Mr Village QC submitted that it was unnecessary to include information as to the environmental effects of the airport works in the Environmental Statement because these works were "inchoate". In the absence of sufficient detail of the airport works it was not reasonable (see the definition of environmental statement in reg.2(1), and in  above) to require an assessment of their environmental effect as one of the cumulative effects of the development. He referred to the provisions of the agreement which require substantial completion of a terminal building with a floor space of no less than 400 square metres, while leaving open the possibility of a planning application for a terminal with a floor space in excess of 500 square metres (in  above).
29 This submission is not well founded for two reasons. First, there is no evidence that this was the basis on which the defendant considered whether the environmental effects of the airport works should be assessed as part of the cumulative effects of the development and concluded that they should not. Secondly, any lack of detail about the airport works was not such as to prevent the defendant from assessing, with the assistance of advice from EKOS and ASA, the economic, transportation and tourism advantages of securing their implementation through the mechanism of the proposed s.106 Agreement. Thus, EKOS was able to assess the market potential for both commercial passenger and air cargo operations (Report, paras 5.65–5.75), and ASA was able to describe what was likely to be provided by way of passenger terminal facilities and to provide a specification for the repair/renewal of the existing main runway (Report, in paras 5.141–5.150). ASA was also able to advise by reference to the likely number of Air Traffic Movements (ATMs) on the "safety issues" arising out of the use of the new facilities at the airport (Report, in para.5.152).
30 Mr Village submitted that the assessments by EKOS and ASA were based on the "minimum case": the airport works required by the s.106 Agreement and no more. On a fair reading of the Report that submission puts the cart before the horse: it was the earlier assessments by EKOS and ASA that informed the content of the s.106 Agreement. To the extent that they described a minimum, rather than, as would appear from the report, the likely case in respect of the airport works, there is no reason why this could not have been reflected in any assessment of the environmental effects of those works as part of the cumulative effects of the development.
31 For these reasons there is no doubt, in my judgment, that the grant of planning permission was unlawful because there was a failure to comply with reg.3(2) of the EIA Regulations. In the light of this conclusion it is unnecessary to consider the further basis on which Mr Jones advanced the claimant's EIA challenge: that there was also a breach of the Directive because the project for the purposes of the Directive included the airport works. "
"The Environmental Statement
37 The Claimants submitted that the ES was defective because of the omission of any assessment of the environmental impacts of burning gas from the KMA well site at Knapton, which were either part of the direct effects of the project or part of its indirect, secondary or cumulative effects.
38 I do not consider that the Claimants' submissions were well-founded, and I accept the submissions of the Council and Third Energy on this point. In my judgment, the Council was entitled, in the exercise of its judgment, to conclude that an assessment of the environmental impacts of burning gas from the KMA well site at Knapton was not required, for the following reasons.
39 The application for planning permission did not include any development at Knapton. Knapton already had planning permission and it was already authorised by the Environment Agency to burn gas from existing well sites, thus generating potentially harmful emissions, including carbon dioxide. No increase in capacity at Knapton was sought as part of this proposal. Any gas produced from the KMA well site and piped to Knapton would be within the existing limits of the permits already conferred by the Environment Agency. Paragraph 122 of the National Planning Policy Framework ("NPPF") advises planning authorities that they should focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes, and it should be assumed that those regimes will operate effectively. The gas supply from KMA would be indistinguishable from the gas piped from other well sites, and so its environmental impact could not be separately quantified. The argument that the proposed development was an integral part of a more substantial project which included Knapton was rightly abandoned by the First Claimant. Applying the guidance given in Hardy and Blewett, I do not consider that the Claimants have established any defect in the ES or any error of law in the Council's reliance upon it."
The Second Claimant's Ground 2
"Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the real likelihood to harm to public health persists should the risks materialise, the precautionary principle justifies the adoption of restricted measures, provided they are non-discriminatory and objective."
The Second Claimant's Ground 2: the law and conclusions
"The central issue is whether the Secretary of State is correct in saying that the controls under the Environmental Protection Act are adequate to deal with the concerns of the Inspector and assessor. The decision which was to be made on the appeal to the Secretary of State lay in the area in which the regimes of control under the Planning Act and the Environmental Pollution Act overlapped. If it had become clear at the inquiry that some of the discharges were bound to be unacceptable so that a refusal by HMIP to grant an authorisation would be the only proper course, the Secretary of State following his own express policy should have refused planning permission.
But that was not the situation…Once the information about air quality at both of those locations was obtained, it was a matter for informed judgment, i) what, if any, increases in polluting discharges of varying elements into the air were acceptable, and ii) whether the best available techniques etc would ensure those discharges were kept within acceptable limits.
Those issues are clearly within the competence and jurisdiction of HMIP. If in the end the Inspectorate conclude that the best available techniques etc would not achieve the results required by section 7(2) and 7(4) it may well be that the proper course would be for them to refuse an authorization…They (HMIP) should not consider that the grant of planning permission inhibits them from refusing authorisation if they decide in their discretion that this is not the proper course.
The Secretary of State was, therefore, justified in concluding that the areas of concern which led to the Inspector and the assessor recommending refusal were matters which could properly be decided by HMIP, and that their powers were adequate to deal with those concerns."
"180. "The position in Gateshead is analogous to the situation here. First, there is no doubt that the existence of a stringent regime for authorisation and planning control is a clear material consideration. Second, where, as here, at the time of the development consent determination the matters to be left over for determination by another regulatory body were clearly within the competence and jurisdiction of that body, as they are here within the remit of ONR it is, in principle, acceptable for the Secretary of State not only to be cognisant of their existence but to leave those matters over for determination by that body.
181. At the time of the Secretary of State's consideration of whether to grant development consent there was no evidence to suggest that the risk of an accident was more than a bare and remote possibility. In the instant case the regulatory regime is in existence precisely to oversee the safety of nuclear sites. There is nothing in the Directive and Article 7, in particular, to require the regulatory regime to be disregarded. NPS EN-6 refers to reliance being placed in the DCO process on the licensing and permitting regulatory regime for nuclear power stations, to avoid unnecessary duplication and delay and to ensure that planning and regulatory processes are focused in the most appropriate areas. It would be contrary to the accepted principle in Gateshead not to have regard to that regime, and in my judgment it would also be entirely contrary to common sense...
193. In my judgment there is no reason that precludes the Secretary of State from being able to have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control. Because of its existence, he was satisfied, on a reasonable basis, that he had sufficient information to enable him to come to a final decision on the development consent application. In short, the Secretary of State had sufficient information at the time of making his decision to amount to a comprehensive assessment for the purposes of the Directive. The fact that there were some matters still to be determined by other regulatory bodies does not affect that finding. Those matters outstanding were within the expertise and jurisdiction of the relevant regulatory bodies which the defendant was entitled to rely upon."
There was a subsequent unsuccessful appeal to the Court of Appeal (see  EWCA Civ 1111) in which Sullivan LJ entirely endorsed the approach taken by Patterson J in dismissing the challenge.
"100. So far as Ground 1 is concerned, it essentially comes down to Mr Wolfe arguing that it is wrong for a planning authority to consider that it can assume that environmental controls would be properly applied. He contends that it should not make the assumption if it has material placed before it which raises issues which could persuade the Planning Committee that such controls would not exist or would not be properly applied. I have already determined that in my judgment that was simply was not the case here. But in any event, in my judgment there is ample authority to the effect that the Planning Authority may in the exercise of its discretion consider that matters of regulatory control could be left to the statutory regulatory authorities to consider. There was ample material before it that all matters of concern could be and would be addressed, as set out in the officer's very careful report.
101. In my judgment what happened here was that the committee accepted its officer's advice that it had sufficient information to determine the application, and that it should and could assume that the matters could be dealt with by the EA and by the HSE. That is what she advised them, and that is what the Minutes record. She did so after setting out all the issues. That approach was entirely in keeping with long standing authority, and also with long standing policy advice. There is no question here of any gap being left in the environmental controls, and none was identified by Mr Wolfe. Each question raised by the objectors was dealt with in the officer's report with great thoroughness, and the Committee was quite entitled to accept her professional view that the matters in question could be left to the other regulatory bodies.
102. Indeed, the existence of the statutory regimes applied by the HSE, the EA and the DECC shows that there are other mechanisms for dealing with the very proper concerns which the Claimant's members have about the effects on the environment. The Claimant and its members' concerns are in truth not with the planning committee's approach of relying on the other statutory regimes, but rather with the statutory bodies whose assessments and application of standards they disagree with. That does not provide a ground of legal challenge to the decision of the planning committee."
A. The duty to determine the application in accordance with the development plan
B. The duty to supply reasons
C. The duty to conduct the inquiry in accordance with the rules of natural justice
D. Environmental Impact Assessment
E. Reference to the CJEU
a. the question raised is irrelevant to the issues in the case; or
b. the Union provision has already been interpreted by the CJEU, either because "the question raised is materially identical [to] a question which has already been the subject of a preliminary ruling in a similar case" or because the issue has already been addressed in a previous case even if the proceedings do not deal with identical questions; or
c. the "correct application of [Union] law is so obvious as to leave no scope for any reasonable doubt"; but the "existence of such a possibility must be assessed in light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community".
F. Precautionary Principle
"Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the real likelihood of harm to public health persists should the risks materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective."
G. The Court's Discretion
Having regard to the wide scope and broad purpose of the EIA Directive 2011/92/EU ("the EIA Directive") and the need to consider the cumulative impacts effects on projects likely to cause significant effects on the environment:
1. Should national courts treat differently the avoidance of environmental effects of a project depending upon whether the assessment being reviewed by the national courts relates to screening as to whether EIA is required or assessing the nature and scope of an Environmental Statement that has been produced? In other words, is the jurisprudence on circumventing EIA in Abrahams, Ecologistas, etc equally applicable to projects that are regarded as within the scope of the Directive but where it is alleged that the environmental information/statement and subsequent assessment is inadequate in its scope through the exclusion of consideration of future impacts and effects of exploitation?
2. In relation to the exploration for shale gas via unconventional extraction methods (fracking) and the necessary assessment under the EIA Directive, is national policy requiring the decision-maker to ignore the production stage that flows from exploration incompatible with the Directive having regard to the need to consider the cumulative impacts and effects of exploration including the indirect, secondary, tertiary and long term effects?