Fracking Inquiry: Week 1
The Great Lancashire Fracking Inquiry opened today (Tuesday 9 Feb 2016) at Blackpool Football Club's building off
Cuadrilla is appealing against Lancashire County Council's decision to refuse various planning applications connected with exploration and the ultimate extraction of shale gas from two sites in Fylde.
The whys and wherefores of the
case will play out in the next few weeks, as the quasi-legal Inquiry develops, and we hope to be popping in and out to report our own personal take on events and proceedings as the Inquiry unfolds.
At present, what's available is a website
with all the documentation at
This page also had a link to a webcast of the inquiry which you can view on a webpage. The link is right at the bottom of the
inquiry website above
Most especially on that website is a link to the detailed (11 page) programme / timetable that sets out what's expected to
happen when. It can be downloaded at present as a Word document by following this link to the Inquiry Programme, but if that stops working, just
visit the webpage link above and find it there.
LINKS TO CONTENT ON THIS PAGE
DAY 1: 9 FEBRUARY 2016
Day 2: 10 FEBRUARY 2016
DAY 3: 11 FEBRUARY 2016
DAY 1 (9 FEBRUARY 2016)
We always thought it was always going to be a bit of a performance getting in, and it was. As we approached the stadium we passed sidestreets and alleys with blue police vans discreetly parked in case of trouble, but there was none in prospect. All
good natured protest with a bit of live music (more 'primitive-folk' than melody, but entertaining nonetheless).
The security we had seen at the pre-inquiry meeting was still in
evidence - still as polite and unobtrusive (and as heavyweight) as before, and apart from a bit of a problem as to which entrance we were supposed to use (depending on which list you were on), and a bit of a faff having to have bags
searched at each entrance, it was all very smooth and well organised.
The crowd outside was equally good natured - perhaps apart from someone with a loudhailer who made a bit of a nuisance of themselves for a while, making the proceedings a bit less
easy to hear. We had been told to expect a pro-fracking demonstration as well, but - at least when we arrived - they hadn't made it into our eyeshot.
That said, the organisers had definitely fixed the sound system since last time and it was now first
class. Those reporting day 1 were all able to hear very clearly. There was also an inquiry wi-fi connection available so we could upload during the event. Undoubtedly, it
was the best-organised Inquiry we have attended.
The only downside was the absence of a power supply for laptops etc, and the chap from Treales, Roseacre and Wharles Parish Council was the most popular man in the room when he produced an extension cable that we could all plug laptops and tablets
THE INQUIRY OPENS
And so it was that at 10am this momentous inquiry got under way. As we expected the inspector was impressive. Very clear in her thinking and processes, and entirely polite to all. The omens were good.
The usual housekeeping and procedural
items produced a couple of surprises from Cuadrilla's QC, the first was a statement that they were 'minded to apply' for costs - we presume this was aimed at LCC rather than any of the others.
The second was to advise the inspector that
Cuadrilla's sites were covered by an injunction and they would need a list of the people going on the site visit so as to 'avoid a technical infringement of the injunction'
FOR CUADRILLA: NATHALIE LIEVEN QC
It was then time to start the opening statements from each of the parties. These give you an idea of where their case is going and the way it will be conducted. As suspected from the Pre-inquiry, we were able to maintain our view that it
would probably be a waste of money for her to go an assertiveness training course.
Her tone and approach was essentially professionally dismissive. A nationally important government policy supporting fracking was in place and there were only thee or four houses that would be affected, and it was only for a few years.
She thought it was ";astonishing"
that an application had been refused based on such inconsequential reasons. She went on to say that in relation to transport, horses on country lanes were used to meeting tractors and HGV's going to and from farms, so there was no difference
with Cuadrilla's traffic. Furthermore, claims of industrialisation of the countryside were "far fetched";
She was equally dismissive of pubic opinion - saying it had to be "objectively justified" to be relevant, and she made quite a
point of saying that the process of fracking was self-evidently controversial, adding".... however, this is not an inquiry into the rights or wrongs of shale gas extraction..."
She argued that the appeal must be considered in the context of national planning policy which, she said, was very clear and set out in a recent ministerial statement.
FOR NW LANCS CHAMBER OF COMMERCE: BABS MURPHY
Interestingly, the Chamber were not represented by solicitor Peter Whitehead (who led the case at the Pre Inquiry hearing), but were represented by Babs Murphy who has been the NWLCC's Chief Executive since1992.
She made a number of
pro-business, pro-fracking points, and raised the hackles (and generated audible disapproval) of those in the public gallery several times during her opening statement as she alleged that LCC had not taken sufficient account of the wider
economic benefits of fracking. She said 'the vast majority of the Chamber support Cuadrilla's application" adding that if the appeal is dismissed it could strangle the industry in the area.
One of the difficulties for lesser mortals in the
illustrious company of QC's and barristers at an event like this is the lack of experience and understanding of how inquiries work and what is, and is not, a relevant argument to use. We thought we saw a conflict between one of Cuadrilla's
topic-restricting arguments (that the 'principle' of fracking was not a matter for the inquiry) and some of the arguments Ms Murphy was advancing as she strayed - we thought - outside the matters of planning and more into the matters of
commerce and business.
No doubt the Inspector will make up her own mind.
FOR LANCASHIRE COUNTY COUNCIL: ALAN EVANS
We've seen this chap before, and each time we see him it re-inforces our opinion that he is an experienced and safe - if unexcitable performer. Not for him the histrionics and razzle-dazzle of others, but that said, in his introductory remarks, he
quietly scored some impressive points. He picked up things Cuadrilla had said about the horses being used to seeing tractors and articulated lorries on country roads and said it's not unusual for them to see an occasional HGV, but the question
was whether it would be unusual to allow a development that will produce the number of HGVs that this one will.
He produced a measured outline of his case and highlighted some of the weaknesses in the Cuadrilla evidence.
FOR FRIENDS OF THE EARTH: ESTELLE DEHON
She noted the Government offered broad support for fracking, but argued that did not mean that these sites were the right ones on which it should be performed.
She said FoE would focus on only three aspects, and would support the PNR and RAG groups
who would address the others.
In what we thought became an increasingly astute, compelling and persuasive manner, she said the Inspector was properly entitled to place differing weight on the arguments than had been placed by the County Council, and
that despite what had been said so far, it was for the inspector to satisfy herself about the arrangements for ensuring the waste products, and the flowback fluid, would safely be disposed of and she could not depend on the claim that the regulatory agencies
could and should be relied upon to do a good job.
She picked holes in the Cuadrilla arguments and said "those of the North West Chamber of Commerce in relation to the economic benefits that will flow from a commercial scale industrial shale gas
industry are both speculative and of little relevance, as are any comparison with benefits from conventional, off-shore oil and gas extraction."
As she spoke, we became more and more impressed with her performance, her grasp of the legal technicalities and her, clear thinking and direct manner.
In the phrasing of Yoda from Star Wars: "Impressed, we were"
FOR ROSEACRE AWARENESS GROUP: ROBIN GREEN
In a measured style he outlined that the proposal would change the countryside, before going on to criticise the evidence that others had produced. In terms of traffic, he said the issue was the quality of the route used and its ability to
accommodate the traffic generated.
Competent, we thought, but perhaps not the most sparking of the performances we heard..
FOR PRESTON NEW ROAD ACTION GROUP: DR. ASHLEY BOWES
We were unsure of this chap after not being able to hear him properly at the pre-inquiry, but either he had adopted his 'professional advocate' approach today, or it was 'what a difference a microphone makes'
Speaking confidently and firmly, he said
he represented the residents who lived closest to the site who had genuine concerns and proper objections. He predicted that Cuadrilla would say that planning policies were out of date an otherwise inadequate, but said he would show that Cuadrilla was
Like FoE's barrister, we warmed to him as he went through each of the five arguments he intended to make, concluding by saying that they has used a very experienced noise consultant an had produced the most robust and longest noise
study that exists for the area, and it changed what had previously be thought to be the case.
And with that, the opening statements concluded.
CUADRILLA STARTS ITS EVIDENCE
The first witness was Mark Smith who dealt with the planning aspects of their case.
In what was probably a very technically able, - but we thought lacklustre - performance, he was taken through the outline of the evidence he had presented to the
inquiry by Cuadrilla's QC.
It had originally been thought that he would need 3 hours to do this, but this was reduced to about an hour and a half or less in practice.
Cross examination by Mr Evans of LCC.
We quite liked his style. Hesitatingly, he takes you by the hand, and, in an unassuming manner, he builds his case slowly, asking the witness to confirm agreement and understanding as they go, until suddenly he steps aside, and leaves the witness either
at the top of a cliff ready to jump, or in the middle of a field that is very open with nowhere to go when the flaw in your argument is exposed.
One example of this was what appeared to us to be a mistake in the evidence. It seemed to be the case
that a failure to take
account of the visual impact and noise of the fracking towers and equipment (as opposed to the drilling towers and equipment), would extend the time and scale of the problem beyond that set out in the evidence that had been submitted.
was no easy answer.
We thought Mr Evans scored several body blows to Mr Smith's case in this way. There was no knockout blow, but if we were judging it, by the time we had to leave, we'd say Mr Evans had won on points.
DAY TWO (10 FEBRUARY 2016)
Started promptly at 9:30am, but as soon as the first barrister began, a panel in the suspended ceiling swung noisily and threateningly down over the heads of the LCC barrister and his team. With the whole of modern technology
at our disposal, a chap with a brush was sought and he pushed it, (very un-technologically) back up to the closed position.
Cross examination by Ms Dehon of FoE
She first agreed with Mr Smith that she would ask, and he would only answer, questions on planning and planning policy (not technical questions about FoE concerns).
Moving on, she secured an agreement with him that neither the Inspector nor the Minister was limited to the relevance and weight of the arguments for refusal that had been put forward by LCC when it refused the applications.
What she was getting at here is that FoE want to argue about climate change, flowback and waste etc as a reason for refusal, but these are not part of the LCC reasons for refusal. So she had to built up her right to argue those aspects in the
inquiry even though it had not been an LCC reason for refusal.
Clever, we thought. First secure your ground. Then present the technical arguments on it later.
At the pre-inquiry, Cuadrilla's QC said she was - in effect - going to ignore Friends of the Earth's evidence and would not cross examine them. (We thought that was probably because they didn't want to take on FoE's environmental expertise),
so it was necessary for Ms Dehon to create the ground on which to argue her case and have the Inspector take proper account of it.
We thought she did so brilliantly. For example she said his evidence on planning policy relied on the (Cuadrilla) Environmental Statement, and at the Inquiry, Cuadrilla have chosen to produce no expert witness to support what was in the
Environmental Statement, which Mr Smith had relied on to argue his case as part of his planning policy evidence.
He responded to say he had relied on the evidence of other experts and had reproduced that as an appendix, to which Ms Dehon responded but I can't cross examine that expert and their evidence can I, because Cuadrilla is not putting forward any
To which there was no satisfactory answer.
Ms Dehon continued with other planning policy points as she carved out the ground on which FoE would stand to present their arguments. We think this will be important to Cuadrilla and we expect their QC to address this matter strongly when she
re-examines her witness.
Although she had a different (more intense and challenging on the meaning of the language used) style - as with Mr Evans yesterday, we thought she won on points, and more especially she well prepared her ground for cross examining
witnesses to come.
We thought it was quite wonderful to watch her in action.
Day 2 - 1:15pm. WEBCAST CLARIFICATION
Please see BOTH the announcements on 'Day 3' which changes and rectifies this matter.
After Lunch, just before this afternoon's session began, there was an important announcement. Cuadrilla's QC clarified that whilst the webcast is available live to view as it happens, the agreed protocol meant that will NOT
be available shortly afterwards i.e. it is not possible to watch it, say, in the evening of the day it happens, or the day afterwards (presumably unless you have the ability to record it live on your computer). It will however be available in
its entirety for 30 days after the inquiry has closed. Several other parties expressed concern about it not being available other than on live streaming, and the QC undertook to ask whether it was possible to change the arrangements.
FoE's cross examination of Mr Smith concluded with the economic benefits where he admitted the sites in question would generate only about 11 jobs each (22 in total). Shortly afterwards, we moved on to start cross examination by RAG's
Cross examination by Robin Green of RAG
Here was a man in mastery of his argument. His was a technical approach, working his way through Mr Smith's evidence page by page, asking detailed questions on matters of which he appeared to have an intimate knowledge. We thought that was probably
because he was only representing one site, and he could focus specifically on that one.
For example, he began by asking for clarification of one of the plans. Local knowledge showed it had been produced with the wrong scale.
He was less 'challenging' than some of the other barristers, and Mr Smith was able to parry several questions off to other (future) expert witnesses or said he would provide the information later.
Mr Green didn't seem to be landing heavy blows, but we thought he might simply be building his case. For example, he asked why some noise reduction arrangements had been suggested as possible by Cuadrilla when the application was being considered
by LCC but not now.
To our understanding, the answer seemed to be that when they thought LCC was going to grant permission Cuadrilla was happy to offer it, but now with the delays and expense of the inquiry it was no longer viable to offer. However, in response to
further questions he was not able to offer financial information to allow the inquiry to understand the costs involved, or the resources available to Cuadrilla.
There was also a neat exchange about tourism during which the witness kept prevaricating to avoid admitting that fracking would adversely impact tourism. He said there was no evidence to show any impact that fracking might have on tourism.
Mr Green mused to himself something like 'come to Lancashire to see the fracking' Fortunately we were all able to hear him.
In concluding, he went though a list of issues that the witness had been unable to answer to Mr Green's satisfaction.
At this point the Inquiry took a break.
Before the cross examination resumed, Cuadrilla's QC noted that their webcast has been down intermittently for parts of the afternoon because it was under cyber attack (Not from us we hasten to add). She advised that the recording remained
intact and comprehensive, it was just the broadcasting of it that the attack had affected.
She confirmed that they were still looking into whether the recording could be made available as a catch-up and post-recording webcast generally, noting there was a cost implication to do this.
There was no cross examination from Dr Bowes of PNR (probably because planning policy was not one of the matters they had produced evidence about), so the Inspector moved on to invite anyone present who had registered to speak at the inquiry
if they had any questions for Mr Smith that had already been asked. No-one did, so we moved on to....
Re examination by Nathalie Lieven for Cuadrilla
The trick here is for her to take the most damaging comments made by those who cross examined and to refute, defuse or otherwise mitigate the damage they have done to Cuadrilla's case. It's difficult to judge how well she did this because he
arguments are usually very technical.
When all the other parties have finished, the Inspector asks the witness questions about which she is unclear.
The first was whether and how the design had changed since the consultation stage. Mr Smith said it has and cited as examples: enclosure of the flare; re-use of flowback to reduce water use; routing of traffic through HMS Inskip and so on.
The second was about the requirement in the National Planning Policy Framework for high quality design and whether he though it relevant to a temporary permission for six years. He said it was relevant, and some measures like noise mitigation had
Another question was about geological faults and whether there was any information on distances from those faults ( we thought by implication she meant what distance would be safe to frack within). Mr Smith said he did not know.
There were also a lot of questions about the likely size and availability and cost of drilling rigs, most of which could not be answered.
She asked about the 'extra' noise mitigation and why he had said it would be onerous to undertake. He answered it was because of the time and cost of putting it up and taking it down. Questioned further he said it was the cost at £2.9million that
made it onerous.
Sensing trouble Cuadrilla's QC sought to extend the argument into health and safety and said she would ask the Cuadrilla engineers to draw up more information on this.
She also asked about other sites that might have been chosen for use, but there was no helpful answer other than releasing information on other sites would raise the ire of other communities and make life more difficult for Cuadrilla.
She also asked about community benefit payments eg how local is local how would the payments be made and so on, Mr Smith said he was aware of them but had not been party to those discussions himself.
She also asked some complex planning policy questions and some incredibly simple ones like what sort of landscaping would be provided and whether any time period for managing the landscaping had been discussed.
DAY 3 (11 FEBRUARY 2016)
The day started with an announcement that the problems with the webcast from yesterday had been resolved, and answers to questions the Inspector asked yesterday about: the size if shipping containers proposed for use on the site (less than 3m);
flaring (no flame visible, no steam or gas visible, but perhaps a slight heat shimmer may be apparent); will Cuadrilla be paid for the gas extracted during the exploration phase (Yes); and can the webcast be made available for download
after live streaming (Yes it can and will be).
CUADRILLA'S SECOND EXPERT WITNESS
Dr Hiller of Arup Consultants. A softly-spoken expert witness on noise (He would be wouldn't he?), who presented his Proof of Evidence (which is available to download from the
As an aside, an email from one of our readers this morning amusingly noted that the kerfuffle over web cast raises the question of course if Cuadrilla can't even get right a well-proven and well-used technology what chance of them breaking new ground in
drilling and fracking! ;-)
Although to be fair to Cuadrilla's people, we have to say they did fix it within a day. (That said, the webcast's availability was fixable, and they didn't have to go thousands of feet underground to do the fixing).
Our reader also noted that the behaviour of the rogue ceiling panel on day 2 (which suddenly and without warning opened and was left swinging over the heads of the LCC team) might prompt the thought in the minds of some, that if accidents can happen, then
they will happen.
Dr Hiller is still being taken through his evidence (Noise is very technical and difficult to understand matter, so we're not going to report the technical details. Noise anoraks should watch the webcast!)
ANOTHER WEBCAST UPDATE Day 3 10:30am
Seems it may not have been a cyberattack, but a power-surge (Please readers - no flowback of comparisons with fracking and earthquakes, they are self evident ;-)).
We're also advised that the recordings from the first two days will be uploaded sometime this evening, and recordings of future sessions (inc today) will be uploaded in the evening of the relevant day. A second IP address has been
obtained, and the website inquiry page will get a second link via this route.
The Programme Officer has explained that control of the webcast in not within their control and they can only act as a conduit between the public and technicians of the webcast provider. Readers will have noted the sound improvement from Mr. Hiller's evidence now the
microphone has been moved.
Ms Lieven for Cuadrilla asked Dr Hiller to address the issue of the tall noise barrier they had proposed initially to LCC (before permission was refused, but which has now been withdrawn), reminding us from yesterday that it would cost £1.6 million.
Having made that point she asked him to comment on the complexity involved with providing it.
Dr Hiller said he thought that the cost, in relation to a 3db reduction in level for the closest properties, demonstrated limited cost benefit. He said that if you were awake you probably wouldn't notice much difference and if you were asleep, it
would still be below the levels that would disturb your sleep.
We struggled a bit with this. We guess they must have found the man on the Clapham Omnibus to test how easily his sleep is disturbed. Can't speak for anyone else of course, but in our house, a streetlight coming on or the garden gate latch moving
is enough to wake Mrs Counterbalance, but a herd of rogue elephants rampaging through the house would not wake he who has permission to claim to be the master of the house.
Cross examination by Mr Evans of LCC.
Same style as yesterday, walk alongside and seek confirmation from the expert as, step-by-step with imperceptible increments, he developed his case.
As an example of how arcane these arguments become, Mr Evans spent quite some time asking Dr Hiller whether there was a difference between a significant adverse effect in relation to noise and a significant adverse effect in relation to
an Environmental Impact statement, and whether, in particular, there was a conceptual difference. Dr Hiller (hesitatingly) agreed there was a difference.
The witness was giving careful, considered and guarded answers, making Mr Evan's job harder.
Dodging from this issue to others, then returning to the topic seemed to us to be an effective way of destabilising the witness' reluctance that was building up as he was being asked to agree things when he couldn't see where they were going.
In one of the 'returns' Mr Evans sought agreement that something which was not significant in Environmental Impact terms did not mean that it was not significant to a planning judgement did it.
That took a lot of thinking about by the witness before the answer came.
We got the impression that in this process of focus, digression and return, he was being drawn nearer to the cliff edge, but that we might have to wait until after lunch to see the finale.
In the event we didn't have to wait. The witness was asked to agree that in principle an adverse effect can occur below 42 Decibels - otherwise there would not be a need to mitigate it would there?
There was a very long pause before that answer came and to be honest, we couldn't follow it when it did, but Mr Evans seemed pleased to be able to say that in terms of significance adverse impact, it was right that the levels he had outlined would
And although we're not going into the technical details here, we imagine that it will have relevance as the cross examination continues.
Immediately before lunch, we started to get unconfirmed reports that people wearing Frack Free Lancashire and Greenpeace T Shirts had been denied entry to the inquiry.
As the allegations further unfolded, we heard that emails have been bouncing around amongst those opposed to fracking at the end of Day 2 saying don't come in a yellow Frack Free T shirt if you want to get in. There was also a report that a chap
from the green party, wearing a green jacket (unclear whether with or without logo) had been told that he could not enter with it on, and would have to remove it if he did want to get in.
The Planning inspectorate had no knowledge of any such problem apart from one person being refused on day2 after telling security staff they were only coming to disrupt the event. Having seen some of them, we think a statement like that would get
you as close to a remake of Death Wish 2 as you could get.
That said the security staff are unfailingly polite.
If anything more transpires on this, we'll keep readers informed, but at present, there is nothing more than an allegation.
Winding up his cross examination, Mr Evans began an area with which we are more familiar. He noted the requirement to mitigate below certain noise levels and asked 'If you've used up all your mitigation and you have reached the level that more
would place an unreasonable burden on the operator, where do you get the additional mitigation from?"
Dr Hiller said 'You'd have to look for other forms of mitigation'
This is the nub of the argument. Once you have done everything short of an 'unreasonable burden' there is nothing left, and people, simply have to put up with it.
That's because the noise nuisance here is being assessed under statutory (Commercial) law which has been made by an Act of Parliament, and that legislation uses the test of reasonableness to limit the requirement on the noise generator.
But there is an alternative approach, and that is the Common (Judge made) law of nuisance which has been built up on precedent, and carries with it no requirement of reasonableness. If a Judge of sufficient standing determines a noise is a
nuisance. It will have to stop - irrespective of the commercial consequences of that decision. We have seen this happen first hand and it is like an executioners axe on the nuisance. It stops. Immediately.
But for that to happen, the nuisance has to be existing and have been endured, and to convince a Judge that it is a nuisance, so it cannot be argued before the event in an inquiry like this.
Mr Evans' final point was about the benefit a 3 decibel reduction would make. He argued that if you were under a duty to minimise it as far as possible that wouldn't look at degrees of benefit would it?
There was another long pause before Dr Hiller had to agree that the requirement was to mitigate and reduce to a minimum rather than to assess the degree of benefit.
And with that, Mr Evans' cross examination ended.
Cross examination by Robin Green of RAG
This began by Mr Green saying he had noted that Mr Evans approach had been very subtle, before adding - ominously - that his would be a less subtle approach.
What followed was a cat and mouse game with the barrister trying to get an admission, and the witness trying not to give it. It was as good if not better to watch than the Jeremy Paxman / Michael Howard interview when he was Prisons Minister.
Whist it was entertaining for those of us not directly involved, as we've said before, this looks to us to be an Inspector that is nobody's fool (and we understand she is highly regarded within the Planning Inspectorate), and she's undoubtedly
going to take the credibility of the witness into consideration. Those who stonewall unreasonably will no-doubt register with her.
There was first some establishing of facts.
Mr Green first spoke about the World Health Organisation: Night Noise Guidelines for Europe, and sought the agreement of the witness that this document said that Member States should achieve the guidelines it sets out.
He then he sought and received agreement that the Recommendations for Health Protection were on page 108, and they set various levels at which health effects of night time noise had been observed, and what those effects were.
He also sought and received confirmation that the following page concluded that adverse health effects are observed above 40 dBA, so that was the night noise guideline recommended for Europe
He then sought agreement that the guidelines in this WHO document was concerned with *health* effects of noise, not with the broader "quality of life issues" It was about the protection of public health.
Seemingly trying to find a way to wheedle himself out of the constraints that were beginning to surround him, the witness agreed, but he said they applied for "long term exposure"
To which Mr Green said "Remind me, how long is the drilling intended to last for at the Roseacre site?"
Lugubriously, the witness started to add up the various drilling operations, but Mr Green eventually drew out from him that it would be going on for about 14 months, adding "and if that drilling caused sleep deprivation, a period of 14 months
would be a significant period of time wouldn't it?"
The witness said "if it were at a level that would cause sleep deprivation, potentially yes."
Mr Green "And if it was not enough to cause necessarily sleep deprivation, but annoyance, it would also be a significant level and a significant period of time?"
Dr Hiller: "Yes"
Mr Green moved on to say that the WHO document could be contrasted with policy in England - which was concerned with both health, and quality of life.
So English policy - reflected in planning policy - was concerned not just with health, but with amenity, and quality of life.
At this point we're moving into verbatim transcript of the exchange between Mr Green for Roseacre and Dr Hiller for Cuadrilla.
That's partly so that readers can see for themselves how the 'cat and mouse' questioning went, and partly because it is an example of the sort of detail that the Inquiry goes into, and thus why things take so long.
Moving on, Mr Green asked the witness:
"Now, the level that you say is acceptable is, I think 42 decibels is that right?"
Dr Hiller: "For night time, yes"
Mr Green: "And that's drawn, as I understand it, from various sources. Can we just look up the Planning Practice Guidance, and at paragraph 21, a paragraph we've been to a number of times already, and may return to a number of times in the future.
That's concerned with appropriate noise standards for minerals operations. And one can see that it imposes different limits depending on what time of day or night one is looking at".
"During the day, the limit is 10dBA above background levels, except where that would be difficult to achieve, in which case you go to the nearest level to that 10 decibels above"
Dr Hiller: "yes, without exceeding 55"
Mr Green: "Yes. That 55 is an absolute cap isn't it?"
Dr Hiller: "That's the level it says should not be exceeded"
Mr Green: "It says in any event, the total noise from the operation should not exceed 55. That means notwithstanding the difficulties, 55 is a cap"
Dr Hiller: "Yes, that's what it says."
Mr Green: "For operations during the evening, the noise limit should not exceed the background noise level by more than 10dBA and should not exceed 55 dBA. So again, 55 is the absolute cap."
Dr Hiller: "Yes, that's right."
Mr Green: "And finally, we know for night time noise, the obligation is to reduce to a minimum any adverse impact, without imposing unreasonable burdens on the mineral operator, but in any event, noise levels should not exceed 42 dBA?"
Dr Hiller: "Yes, that's what the guidance says"
Mr Green: "So 42 is the cap, but before one gets there, one has the obligation to reduce to a minimum, any adverse impact. So to reduce those impacts down to a level where they are no longer adverse?"
Dr Hiller: "Yes that's what we are seeking to achieve with this mitigation"
Mr Green: "I'm tempted to say that your operation to achieve a noise emission level of 42 at the nearest receptor (that's a house or a person to you and me), that's not beginning to comply with the obligation is to reduce to a minimum, is it?"
Dr Hiller: "Taking this case, looking at the two sites, with the proposed mitigation, it brings the level at the closest dwelling to the site to 42 dBA and when you get further away obviously its a lower level. At the Roseacre Wood site the same
mitigation produced 40 dBA at the closest dwelling, so that to my mind is complying with this requirement here"
Even we could see that it wasn't.
Mr Green continued: "Dr Hill, the starting point is that 42 dBA cap. You can't go above it?"
Dr Hiller: "Yes"
Mr Green: "What you must seek to do is to reduce adverse impact below it. That's right isn't it?"
Dr Hiller: "Without imposing an unreasonable burden, Yes"
Mr Green: "Yes. But until you come to the point of where the unreasonable burden kicks in, you're obliged to reduce, are you not?"
Dr Hiller: "Yes, and that's what we're doing with the proposed mitigation"
Mr Green: "For the Roseacre Wood site, you're proposing a noise level of 42, or 40?"
Dr Hiller: "We're proposing that the planning condition would say 42, however we expect to be as the modelling shows that the achieved level would be below that, with this level of mitigation."
Mr Green: "So if you can achieve a noise level below 42 at Roseacre Wood, why do you nonetheless say that 42 is the appropriate level?"
That took some thinking about, then...
Dr Hiller: "Because to limit it to 42 to my mind would be appropriate for this guidance and would be consistent with Lancashire County Council's requirements on other sites where... and to the Council itself."
Mr Green: "We're not concerned with other sites, we're concerned with what can be done on these sites, and I'm concerned with Roseacre Wood, and we know that, because Cuadrilla has offered it, that mitigation measures can be put in place that will
reduce the emission levels to 40 according to the modelling. So I'm trying to understand why, you said in those circumstances, when those mitigation measures are not said to be unreasonably burdensome, why the appropriate level is 42 rather than 40 on
Dr Hiller: "We wouldn't be, the applicant wouldn't be working up to this as a limit, but this would protect the residents from sleep disturbance at this level, but that doesn't mean that that level would be necessarily worked up to."
Mr Green: "Why would you set a level higher, than the level that can be achieved with reasonable mitigation measures?"
Dr Hiller: "To be consistent with the guidance. We've got to set a level that we can monitor."
Mr Green: "The guidance requires you to minimise adverse impact"
Dr Hiller: "And not exceed 42, yes."
Mr Green: "Yes, but they're not the same thing. Just because you hit 42, it doesn't mean that you are minimising the adverse impact, does it?"
Dr Hiller: "Erm, No it doesn't, but.... (rest of this sentence is inaudible, perhaps something about 'not necessarily working up to that level').
Mr Green: "So you're saying if reasonable mitigation measures could reduce noise levels below 42 - say to 38 or 35, - reasonable measures, nonetheless, it would be appropriate to set the level at 42"
Dr Hiller: "To protect people's sleep, yes."
Mr Green: "Even though the operation *can* reduce its noise emissions to below 42. That's the approach you've adopted?
Dr Hiller: "As I say, just because it ... it would not remove the requirement for the operator to mitigate as far as possible"
Mr Green: "Dr Hiller, I suggest you have fundamentally misunderstood what this policy requires, which is first and foremost to reduce noise levels to the minimum levels possible."
Dr Hiller: "And that's what we're seeking to do"
Mr Green: "You're seeking to agree a condition that allows you to emit more noise than you can control."
Brilliant, we thought. That took some thinking about by Dr Hiller and there was silence for a while, the....
Dr Hiller: "We're seeking to protect the residents from excessive noise at night, to protect their ability to sleep with windows open, and that would not impose an unreasonable burden on the applicant."
Mr Green: "A level of 40 would achieve that?"
Dr Hiller: "A level of 40 would achieve that, yes."
Mr Green: "So why pick a higher level?"
More, even longer, silence
Dr Hiller: "It's set higher to - its set at that level - to be consistent with the requirement not to exceed 42"
Mr Green: "Dr Hiller, I've taken that as far as I can"
And there we will leave the verbatim transcript.
Mr Greene had been was unfailingly moderate in tone, but (we thought) devastating for the witness.
Cross examination by Dr Ashley Bowes of PNR
We thought his style was firm, and his first argument seemed a bit less than successful, but he continued undaunted.
Again, in this cross examination, there was much complex technical information about noise levels that we're not going into in detail here. We had hoped for a more inspiring performance given Dr Bowes credentials, but as Mr Green had found out,
whilst not a hostile witness, this one was a difficult one to pin down.
ACCESS DRESS CODE PROBLEMS RESOLVED
We reported around lunchtime on Day 3 that we'd heard allegations that some people wearing yellow Frack Free T shirts and someone with a 'Green Party' Jacket had been refused entry. We also reported that the Programme Officer told us she had
no knowledge of this having taken place.
She then, we've been advised that it was the case, but is no longer. It seems that, without the knowledge or authority of the Programme Officer, door staff had taken it upon themselves, (or had been given instruction by someone unknown)? to
refuse entry to folk in 'protest clothes.'
We're told that situation has now been corrected by the Programme Officer. There is no dress code, although she has asked people not to bring banners inside, which seems quite reasonable to us.
The security staff have been unfailingly polite to us (as we have said previously, so we imagine this was a short lived, if over-zealous, misjudgement, and we trust things are back on track, and anyone who was refused entry during this period will
not be put off from attending again.
Sadly, we were not able to be at the inquiry on Friday 12th and cannot be there on Tues 16th because of a funeral, but we do expect to be back on Wednesday 17th and we also expect to report the public session that evening.
Dated: 15 February 2016