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Fracking Inquiry: Week 6

Froacking Inquiry Week 6Perhaps inauspiciously, the last lap of the Great Lancashire Fracking Inquiry took place immediately following the Ides of March which, in Roman times, saw the death of Caesar.

The Ides (15th) of March became a turning point in Roman history and we have no doubt that both sides in this debate are hoping the Inquiry too will herald a turning point for them.

Just enjoying the Roman analogy for a moment longer - like the barristers taking part in the Inquiry - Caesar's killers were rational, highly-educated people, and no doubt the Rule 6 Community groups hope their barristers will have delivered the fatal blow to Government Minister Greg Clark's avowed support for the establishment of  a fracking industry in the UK.

He gave that support following a request from Chancellor (and Caesar look-alike) Boy George, whose inability to balance the nation's books is getting to be something an embarrassment - (especially when the only Conservative Chancellor to have done so in modern times was non-Oxbridge  grammar school boy John Major).

His statements of support have led many to believe Mr Clark has a prejudiced mind in favour of allowing the appeal, and it's easy to see why people think that when you read what he has said. But in reality, we think he will be much more constrained by legal arguments in this matter.

He knows that his decision on this is not likely to be the end of the matter.

Whichever way he goes, he, and the Government's lawyers know that both sides of this inquiry are standing ready - Cuadrilla on one side and an alliance of Greenpeace, Friends of the Earth, the Rule 6 parties with a strong supporting cast on the other, will almost certainly be challenging it - whether in the High Court via a Judicial Review or (or possibly and in the case of those opposed to it) via Europe and the Human Rights Act.

So we think it will be decided on tight legal interpretations of planning legislation, the ones that Dr Bowes and Ms Dehon majored on last week.

So it was with this week's presentations by Roseacre Action group, then Lancashire County Council and finally Cuadrilla, who also focused on the technicalities of planning law.

As before, we prepared a template page below, and partly updated it during Wednesday's final sitting day of the inquiry.

One point we should make before we end this introduction is to commend two people in particular.

First, the very experienced programme officer who has done a magnificent job in keeping everything on time and keeping track of all the documents as they deluged in - including the presentations and written submissions from around 200 members of the public.

But the most incredible performance of the whole inquiry must be that of the Inspector Wendy McKay. We have attended many of these inquiries locally and have even been a presenter within a Rule 6 party at one of them, but none that we have seen have been so ably controlled. 

Never have we seen such a light touch used to deliver such effective management of an Inquiry. It has been a credit to her, and it augurs well for a thorough job of her report and recommendations. It is clear she had a grasp of the issues right out the outset, and knew the 'core documents' simply by their reference numbers before the Inquiry opened. That indicates a great deal of background reading had been undertaken to prepare herself for the task.

She has also demonstrated compassion where people became emotional, and firm with those who failed to stay within the parameters she had set, but above all she was - rather like David Dimbleby on 'Question Time' - unfailingly polite and considerate to every individual who took part.

She even took in good part and light humour, Gayzer Frackman's somewhat cheeky delivery of the written copy of his five minute presentation in what - with a smile - he told her was a "brown envelope for her"  

We are very happy to salute, and indeed to thank her, for the way she has conducted this inquiry.


 DAY 19 (16 MARCH 2016) CLOSING STATEMENTS.

 

Steve BeckerBefore we say anything further we want to stop our report for a moment to speak of a really sad piece of news that came to us during the afternoon. We understand from an authoritative source that BBC's Radio Lancashire's Steve Becker, a really decent man, and a terrific radio reporter with a wonderful manner and the ability to quickly put those interviewed at their ease, had died whilst driving to the Inquiry this morning. We have no further details at this time, but we send our deepest sympathy and our condolences to his family. Lancashire has lost one of its great voices.

 Inquiry Opening Remarks

There were a few comments noting documents received after close of play last Friday.

We were also told by someone who was here during the conditions session, last Friday that Cuadrilla had or were applying for a condition to allow the discharge surface runoff water from their site  into the Liggard Brook close to  the Roseacre site.

UPDATE: We have now had the opportunity to check the written conditions, and the agreed condition (on the Preston New Road Application) says "All surface water run-off on site during operation that cannot be discharged into Carr Bridge Brook shall be taken off site in purpose designed tankers for off-site disposal at a licensed facility."

If this discharge provision is only for surface run-off water, it is a relatively insignificant matter, but we wonder if it could also represent a future opportunity for Cuadrilla to look at a potential alternative disposal route for some of the flowback water if it could be treated on site. That could, as far as the planning application is concerned, muddy the water (sorry!) about how much they might need to tanker away, thus affecting arguments about the number of HGV journeys and perhaps taking some of the sting out of their 'mis-stating' of the flowback volumes that arose last week.

At present, we should make it clear there is no suggestion of this happening, but if flowback volumes were considered at some future date, it could be quite a serious matter, because Carr Bridge Brook runs into the Main Drain which ends at Dock Road Bridge in Lytham where there is already a serious risk of flooding in Lytham itself.

There was also a rumour that shot around the Inquiry room during the morning which suggested that with immediate effect,  the A. J. Lucas Group Limited - often referred to as Cuadrilla's parent company (we understand it owns about 40% of Cuadrilla) - had suspended its share trading. 

The undoubted hope amongst some of those opposing the appeal was that this indicated a collapse of the parent company and that might reflect onward to the detriment of this application and appeal.

We can confirm that AJL did request a suspension of its share dealing, but they have indicated that the purpose of this is "to enable them to finalise the details of a equity raising"

It also said it expected the suspension not to last beyond Monday 21 March, and that it is "not aware of any reason why its shares should not be suspended or of any other information necessary to inform the market about its suspension."

The underlying reasons are as yet unclear as to why they want to raise more capital. It may be to do with the general downturn in the hydrocarbon market, but on 6th March, AJL did acquire three new Petroleum Exploration Licences in New South Wales, and there may also be a connection there.

 Roseacre Awareness Group 

There was shock when the Inquiry was told that RAG's barrister (Mr Green) was "Unable to Travel" with no further explanation being available, but he had supplied a written closing statement which was read out by Elizabeth Warner of RAG.

The Inspector expressed disappointment - partly because RAG had been moved to today only because Mr Green had been said to be unavailable to present his closing remarks last Friday -  but mostly because it meant she could not ask questions on technical points of planning,

Mrs Warner said she was unable to help further and could only relay the message that had been given to her.

She went on the read the evidence Mr Green had sent. She addressed issues of highway safety, character of the landscape, resident's amenity and health, with particular reference to transport, light and noise.

Looking at what she saw as Cuadrilla's main arguments, she said they had relied on last September's  Ministerial statement of support for shale gas. She said it appeared to be the case that Cuadrilla thought this statement could 'trump'  arguments about sustainability and safety.

She also said Cuadrilla argued that the Development Plan was absent of silent about shale gas development, or it was out of date. But of course the argument is that although there is no specific section of the development plan that addresses shale gas, there is a considerable body of evidence about minerals extraction.

She then went on to address the points in the expert evidence before the Inquiry.

TRANSPORT
She rehearsed all the arguments and claims made from their evidence. Chief amongst these were that the local road network will never be able to accommodate HGV's of the size likely to be used. She also asserted that the transport data from Cuadrilla made it impossible to distinguish the actual size of the 'HGVs' a term encompassing widely different sizes of lorries.

She also said that the transport arrangements for the 7,500 tons of sand that would need to be delivered to site to use in the fracking fluid had not been taken into account in calculating the lorry journeys to the site, and she also said that if the flowback exceeded the suggested figures (about which readers will recall there was a lot of debate last week), that too could produce more traffic than the Inquiry had heard evidence of.

LANDSCAPE CHARACTER
She said that in the vicinity of the site, the character was classic rural farmland, and, as the Inquiry had heard in evidence, it was well used by cyclists, horse riders and pedestrians. She thought Cuadrilla had misrepresented the scale of the impact the proposal would have on the landscape.

Regarding the impact of lighting she sought to dispose of Cuadrilla's argument about the lights on the masts at HMS Inskip by saying that although the red aircraft lights were visible from a large area of the Fylde, they were not intrusive or dominant, but the lighting of Cuadrilla's site would have a "Significant impact" during the drilling phase, but there will also be lower level harm from lighting for the whole of the works.

She concluded that "...the adverse and unsatisfactory influence of the lighting will be severe"

NOISE
She said this would have a significant impact on local residents, arguing that the topography of fields and copses led to unhindered noise propagation.

She also argued that ambient noise at Roseacre was improperly addressed because the 42 dBA cap that Cuadrilla has proposed was not enough to satisfy the need to reduce noise to a minimum.

Piggybacking on PNR's case built up by the compelling evidence of Mr Stigwood, she picked up a number of his arguments, including the one about night sounds below 42 dBA that induce waking from sleep because we are genetically attuned to listen for sounds that might represent a threat - such as a dog whining.

She criticised the absence of a proper background noise study by Cuadrilla which she said had only taken place for 30 minutes on one night.

COMMUNITY RECREATION AND AMENITY
She spoke of the church being  a local hub for community events, and of environmental improvement schemes such as bulb planting in hedgerows where farmers help with transporting materials and so on.

She said the reductions that would arise in the use of the area by cyclists, horse riders and walkers would be directly and indirectly damaging to local businesses, and after speaking of other matters from their evidence, she concluded that the proposal would deliver significant harm to the local community

CONCLUDING
 She said benefits from economic development could only arise from the production phase which is not before the inquiry.

She went on to rehearse some of the planning policy arguments, and again spoke of the Ministerial statement, saying its support was conditioned by a requirement to meet the needs of  planning policy, safety and sustainability matters which she believed this scheme did not meet.

She said safety and sustainability are key considerations and RAG said this was neither safe nor sustainable.

She argued that resources for shale gas were abundant elsewhere  and RAG says the overall planning balance weighed heavily against the appeal.

She also argued that if the permission was refused for Roseacre, there would be no need for the monitoring sites. Both were linked and they needed to be considered together.

She went on to say that all the appeals related to exploration, and given the level of widespread public concern, they would have expected Cuadrilla to do more to base their evidence on the best available information.

But, she said, the reality had been different and went on to list an 'incomplete road survey', noise surveys, ornithological surveys and other matters describing them as being deficient or incomplete.

She also thought it was odd that no-one from Cuadrilla itself had given evidence to the inquiry and suggested that a cynic might believe their absence from providing information and being subjected to cross examination might think this was about controlling the information to the inquiry.

She concluded by saying the proposal would cause substantial harm, and she invited the Secretary of State to dismiss the appeal.

 Lancashire County Council 

The Inspector noted that RAG's closing statement had taken longer than had been expected, and they were now a bit behind the timetable.

Mr Evans said he recognised the timetable issues in relation to the points he wanted to make, and said he would "take them at a rapid pace" and summarise his evidence. Furthermore, he would not use quotations from the evidence he relied upon in order to save time.

Mr Evans delivered his closing statement in his usual measured tone - that is, he makes you feel as though you are enveloped and safe in warm and trusted pair of hands (which you are if you're on the same side as him).

He does not hector or insult, nor does he push or intimidate, nor does he bark legal technicalities. He invites you to walk alongside with him and to agree with him as you go.

It is, we have to say, a very persuasive style.

For an example of this, readers need look no further than the observation we make in the first two paragraphs of the Planning Policy section below.

Dealing with Cuadrilla's claim about the development plans being "absent and silent" - he does not approach it aggressively by saying that Cuadrilla are wrong, he depersonalises it and says it just cannot be right, and explains in simple terms why you couldn't do anything but agree with his logic, which listeners (including ourselves) find themselves doing.

PLANNING POLICY
He first spoke of Planning Policy and addressed Cuadrilla's claim about the Development Plan being 'absent or silent' on the matter of shale gas. (They were trying to say that because the various local plans did not have any specific sections on shale gas development, the plans were 'silent' on the matter).

He said "That cannot be right. The Development Plan is plainly not 'absent'. It is present at both County and District level in the form of the Minerals and Waste Core Strategy and the Minerals and Waste Local Plan, and the Fylde Borough Local Plan"

He went on to say it was common ground between the parties that there were policies in each of these which were relevant and should be taken into account, and in such circumstances it was impossible to advance the contention that the plan was wither absent or silent (he quoted legal precedent to support his statement). He said it could not be considered silent when it had policies relevant to considering the application - which it did.

He then turned to the weight to be attached to the policies that were in the various plans, and using a paragraph from the NPPF he said the LCC's Policy DM2 should be given full weight and it was not diminished by it not mentioning shale gas specifically.

He addressed other (FBC) planning policies regarding maintaining landscape character as well.

He then moved on to the 'Written Ministerial Statement'  the Inquiry has heard so much about, and said Cuadrilla had placed "exaggerated weight on this".

He said it did not prescribe the weight that should be attached to it in planning decisions, but "...simply provides that it should be taken into account in such decisions" He also said it was constrained by the need for development to be sustainable as PNR had claimed and if it was not sustainable, the Ministerial Statement was not engaged.

LANDSCAPE CHARACTER
Mr Evans went on to the PNR appeal site specifically. He began with landscape impact and the impact the development would have on it and he contrasted evidence from the various experts.

Mr Evans said just because it wasn't formally designated as having some special character does not mean that the landscape has no value and indeed ordinary landscapes have their value and he seemed to be saying that just because you could see Blackpool's buildings and pylons and so on, from the site, that did not mean they were part of the character of the area you were in at the time.

But then he became very technical in making distinctions between the landscape and what the landscape looked like. He also said he thought Cuadrilla's assessment had only considered what may be lost from the landscape as a result of the proposal, not what might be added to it.

He criticised some of Arup's work regarding the absence of the landscape impact of lighting, the use of 'not well judged' photo montages (which did not seem to meet the recommended field of view that should be used), and he questioned the judgement of the witness who had said that "there would be no material difference between a 53 and 36 metre high drilling rig"

We thought he made a rather nice point about Cuadrilla's claim that in any case any landscape change would only be for a temporary period. He said "While the duration of adverse effects may be relevant to the acceptability of development, it is axiomatic that development which is unacceptable cannot become acceptable because its life is limited."

Nice

He also argued the case for a limit of a 36 metre drilling rig rather than a 53m one on landscape grounds if the appeal were to be allowed.

NOISE
He apologised at the outset for delivering what was going to be a detailed and technical presentation (which it was).

He began by outlining the hierarchy in which noise is addressed in planning terms from the NPPF to practice guidance, which included a requirement to minimise it by mitigating its adverse impacts.

He said national noise policy recognised very clearly that noise can impact on both quality of life (which he said was a subjective measure that refers to people's emotional, social and physical wellbeing), and health (which refers to physical and mental wellbeing).

He said the key document here offered specific guidance on noise in planning for mineral extraction and quickly got to the paragraph on 'night time noise' which the inquiry has heard so much about.

Mr Evans said there were a number of points to consider. First, subject to not imposing an unreasonable burden, it requires that noise limits are set to reduce to a minimum *any* adverse impact, and that must, he said, refer to 'significant adverse impact' and other adverse impacts within the noise hierarchy

He did, (but we're not going to), go into the arcane and detailed meanings of these various levels. Suffice here to say that, in essence, the disagreement with Cuadrilla - as we have seen with others - is whether one should put more weight on Cuadrilla's claim that they only need to get down to 42 dBA at night, or whether it is more important - as others say - that the noise must be reduced to a minimum even below this level if doing so does not impose an unreasonable burden of the operator.

Various noise experts had said what they thought the minimised level would be, Cuadrilla's experts said 42 dBA was all that was needed, but experts from the other groups ranged from 30 dBA to 39 dBA

The shortcut to the outcome of this consideration must be that, if there is a requirement to minimise it to 'x', but in order to achieve 'x' it would impose an unreasonable burden on the operator, then as far as we can see, the only conclusion you can come to is that it is not possible to meet the requirements and therefore permission should not be granted for the activity that creates the night time noise.

After lunch and after moving through other precedents that supported his case, Mr Evans criticised Arup's noise survey as being "Inadequate to establish the existing noise environment." This was especially relevant because Cuadrilla had claimed that the night time traffic noise would be louder, and he dismissed the argument of 'habituation' that is to say, people will get used to the noise.

Referring to the evidence of the NW Chamber of Commerce (delivered by Ms Murphy) he stayed at a relatively high level in dismissing it.

He cited the Planning Practice Guidance (Minerals) which specifically asks the question about whether Mineral Planning Authorities should take account of the (subsequent) production phase of hydrocarbon extraction when considering the exploration phase before itself answering it with an emphatic "No."

And he went on to say "It may be conveniently noted in passing at this point that the case of the North Western Lancashire Chamber of Commerce, in focusing on the potential benefits were a shale gas industry to become established, has failed to observe the distinction which planning policy requires to be made between exploration and production, and has stationed itself, on the very territory, which that policy places out of bounds"

We thought that was very clever.

This was not the hard-hitting criticism of NWCoC's evidence (as we have seen from elsewhere in the Inquiry). This was a beautifully phrased, gently delivered, but nonetheless devastating a critique of the contribution made by Ms Murphy and the Chamber of Commerce.

He then briefly reprised his headline arguments during his closing statement on PNR Exploration and came to what's called the planning balance - his view of the plusses and minuses of each of the issues, and he concluded that in this case, the balance comes down in favour of refusal and he said this appeal should be recommended to be dismissed.

MONITORING WORKS at PNR
He said refusal was based on the Fylde BC local plan in that the cumulative effect of the proposal would lead to an industrialisation of the countryside and adversely affect the landscape character of the area.

He went through and illustrated insufficiencies or inadequacies in the information and evidence which had been presented regarding other monitoring sites, then went on to repeat criticism of LCC which has decided to refuse the monitoring application at PNR, but had not refused it at Roseacre, but said the witness had admitted that he did not know whether landscape differences could be considered to justify the outcome.

He said in any event, each application must be judged on its merits, and he went on to recommend the appeal be dismissed.

ROSEACRE WOOD EXPLORATION WORKS
We think Mr Evans was only setting out (as have others) to address only the matters at Roseacre that specifically differed from PNR in order to avoid repetition of the same arguments, so readers should take most of the PNR data into account here as well.

Mr Evans specifically addressed first the planning policy aspects of transport, saying that it would generate traffic and in particular HGV movements that would generate an unacceptable impact on the rural highway network, and on existing road users.

He said local policy clearly did not support the use of the route that Cuadrilla proposed.

He went on to address the more practical and traffic related matters at Roseacre. First agreeing that there was little or no difference between the base vehicular traffic flows done by LCC and Cuadrilla.

But as to use of the route by vulnerable road users, LCC had initially seen no reason to question Arup's survey as such, but having heard the evidence of others, they has seen deficiencies in it with regard to periods of study and especially with regard to cyclists, equestrian uses and pedestrians.

In respect of the HGV's he said the risks of conflict on the routes were unacceptable adding: "Narrow country lanes such as Dagger Road are no place for a significant increase in HGV's" before going on to seriously criticise the competence of Cuadrilla's 'Road Safety Audit.' before addressing other issues weighing toward refusal.

He concluded that this appeal should be dismissed.

 Inspector's Questions

The Inspector asked about one of the precedents he had cited, and about what he thought she needed to know in order for a judgement to be made. That's not as odd as it sounds because it sounded to us to be more about the legal approach to taking decisions rather than about practicalities.

Mr Evans said (we thought wisely) he didn't think he could help further.

She also asked him about 'interpretation of policy' (these sort of issues are where it gets stratospheric on planning and beyond the realm of most mortals) and asked if there was any case law to which he wanted to point her?

Mr Evans said there was no case law on that matter. He thought it was fairly well established in as much as interpretation must be on an objective basis and noted that ultimately this is a matter for the courts rather than for the views of decision-makers, adding: "In a phrase that the Judges are very keen on - plan authorities can't make words mean what they would like them to mean" - so, he said, it was an objective matter of interpretation.

He said a meaning must be given which is a correct objective meaning, and with humour in his voice he then said "it's not right to approach it on the basis that there is a spectrum of reasonable meanings and provided one meaning is selected that doesn't get beyond the bounds of a clearly unreasonable meaning, that's acceptable"  That's not the right approach, they should be given an objective meaning.

He has a lovely turn of phrase, and a clear love of our wonderful language.

We thought at this point that the Inquiry had had its own 'Donald Rumsfeld' moment.

 Cuadrilla  

Ms Lieven began her concluding remarks.

Readers will remember we had high hopes for an interesting performance from her before the Inquiry started, and mostly we were not disappointed. We also believe we were close in predicting what turned out, on occasions, to be her quite forceful manner.

She was arguably the best the qualified of the advocates (being a QC - a status usually drawn from amongst the ranks of barristers)  And indeed at times, she metaphorically ate alive those experts delivering weaker evidence. She pushed quite hard with what she might have thought were intransigent witnesses, and yet she had been accommodating to others.

We also saw her struggle with one or two.

It would only be right to say we quite warmed to her. Whilst we may not have wanted the same outcome, no-one could say that she did not try - and try hard - to maximise the case she had to present.

There were times when we thought she was having to try to create a silk purse from the sow's ear of a case she had been given to promote. But that was not her fault.  The case was as it was.

The one area we might criticise in her presentation was that - and this is only our personal view - in trying to generate the absolute maximum case for her client, she was sometimes so obviously scraping the bottom of the barrel of arguments that some might have thought it damaged the credibility of the more substantial arguments she was able to advance.

PLANNING POLICY
She began her closing statement with the Planning Policy Arguments and made the (now familiar) case that because the various development plan policies don't say anything specific about shale gas, they should be considered to be 'absent' or 'silent'

She said "Existing mineral policies which were not written to deal with shale gas exploration do not from any basis on which to determine these applications" and this was a theme she had used throughout.

To be honest we don't find that a cogent an argument. You could argue the same case for any industry that is - 'unconventional.'

She went on to argue that LCC have known about shale gas for 6 years but have not developed a specific policy on shale exploration, and that the development plan is now so far out of date compared with national policy that it should be afforded little weight.

Moving to NPPF she cited a quotation about planning authorities giving great weight to the benefits of mineral extraction to the economy.

This was factually correct of course, but it seemed to us that this support in the NPPF was for mineral extraction and not specifically shale gas, and we struggled to square this concept with her earlier argument about shale gas not being a specific policy in LCC's documentation.

Turning to  the Ministerial Statement she said it gave strong support for Shale gas - which it undoubtedly does. And it will be for the Inspector to assess the relative weights of the views of Cuadrilla, the Secretary of State and Friends of the Earth who challenged the meaning of the Statement and whether it was  a low, lower or whatever form of carbon.

She then took up the FoE point about the abandonment of Carbon Capture measures and the 'Paris Agreement' on Climate Change saying that whatever these may be, the Government had made it clear that shale gas had an important role to play in the UK's transition to a low (or lower?) carbon economy.

Again, we think this is one for the Inspector to evaluate.

NOISE
The main argument is about noise at night. Cuadrilla in effect say there is a 42 dBA maximum, so provided we don't go above that it's fine, and we will do what we can to minimise it below that level.

Opponents argue that's not good enough. They say Cuadrilla must demonstrate there's nothing more they can do to minimise it - and if it's not good enough, permission should be refused.

Ms Lieven went through all the points she had made during the Inquiry, the drilling noise will be for 8 months, then a four month gap and another 6 weeks of drilling, so its not a permanent situation. And there are a limited number of people and properties affected. (Not a lot if comfort if you live at one of them of course). The noise of the road at PNR will mask it anyway.

Then there was the issue that the noise mitigation should not impose an 'unreasonable burden' on the operator. (The implication of this appeared to be that if it was going to impose an unreasonable burden you would just have to put up with it)

We thought this was a rather dangerous argument to make, because as we see it, the other side of that coin is (not putting up with it, but) deciding it is not possible to do it within the requirements, ergo it becomes a strong reason for refusal.

Ms Lieven did as good a job as she could to muster the arguments using a wide variety of sources and justifications, looking at the tonal quality of the noise and the extent of noise barriers that could be used and so on.

Again as with much of the evidence, there were apparently conflicting or at least different standards, and it depended how much weight you placed on each of them as to which side of that coin you came down on.

This again is one for the Inspector's judgement

LANDSCAPE IMPACT / INDUSTRIALISATION
Ms Lieven argued it was not a National Park or an Area of Outstanding Natural Beauty or any other form of special designation, you could see Blackpool tower and the motorway and the Erniebonds buildings and pylons and the A583, so really it wasn't that special, and in any case, it's only going to be for 14 months or so when its bad. And it will only be 30 months for the first phase and after that there will only be a very occasional service rig, so it shouldn't really be seen as a problem.

Yes the rigs will be lit when they're there, but that's not forever, and the impact on the visual landscape is reversible anyway.

Although she phrased it in much more detail and with greater (and properly due) deference to our grammar, this was the 'sense' of the arguments she made on the landscape impact.

TRAFFIC AT ROSEACRE
Ms Lieven quoted the NPPF which says that transport can only be a reason to refuse a development where the traffic impacts are "Severe"

She said the HGV journeys would be capped at 50 movements a day and in any case, it would only be for something like 15 weeks over the entire 6 year period.

We thought she tried to argue that some risk assessments done by LCC and RAG were flawed, because they didn't assess the risk over the whole term of the project (It seemed to us that if there is a max of 15 weeks and the whole project is 6 years, then if you look at it the way she suggested, it was likely there would never be a problem)

We struggled to accept this view. It seemed to us rather like an argument we had long ago about zebra crossings where, fired with youthful zeal, and the infallibility of our logic, we argued that it was right to step boldly on a crossing because cars HAD to stop for you. When someone with an older head suggested that being right didn't really matter if you were dead, we had a bit of a re-think.

She went on to say that the HGVs would have to work to a management plan and follow safety rules and HGV drivers were very experienced folk, they could pass cyclists safely, and horses already ran the risk of meeting a HGV on the roads already as well. And they were putting in big passing places, and there were HGV's on the road now so all would be satisfactory.

She did conceded it was likely that some horse riders might choose to avoid the area, but they would probably move to another stables not very far away. We think our readers will see here what we mean about scraping low in the barrel of justifications on some occasions.

OTHER CONSIDERATIONS
Finally she turned to the 'other considerations' - (chiefly those raised by Friends of the Earth) of Public Health and Flowback fluid, and also the economic impacts.

On public health she said there clearly was worry. She then said "This then impacts indirectly on their health through stress and anxiety"

We really struggled with this statement. Stress is something we know a little about and it's not just a feeling of worry or upset from which you should 'man-up'.  It's when you have an involuntary physical bodily manifestation caused by that feeling or worry.

Although there are many others, the most obvious display of this is bursting into tears for no apparent reason, (and we saw that as some people gave evidence to the inquiry, let alone what they do in private). That's not an 'indirect impact' in our book, it's a direct one, and it can and does affect physical health with things like raised adrenaline levels which thicken your  blood and bring the attendant risks of vascular blockages.

We'd pretty much say that's a direct impact. But Ms Lieven had termed it 'indirect'

She did go on to describe what she called the "direct" health effects (actually we think she mean 'threats' rather than 'effects' but that's only our opinion) which, she said, were strictly controlled by the Environment Agency through its permitting system which ensures no levels of emission that could "possibly" have an impact on human health.

We (and our readers) know - although we accept Ms Lieven may not know - that this is simply not true. You only have to read our article the Great Bathing Water Con to see how the EA and the Government have colluded together to use its 'permitting system' to fiddle the figures on the Fylde's bathing waters for the sake of commercial or political expediency.

She also said "The EA will be assiduous in checking and controlling emissions. This is going to be an exceptionally highly monitored and controlled development"  For the same reasons as above we simply cannot believe that either.

She went on to argue that unlike the US, the UK's drinking water usually comes from surface sources, not groundwater. We're no experts, but we did hear tell that 11% of Fylde's drinking water does come from boreholes, and we've heard evidence in the inquiry that local farmers use boreholes for crop irrigation so it may not be a clear cut as she suggests.

With more then a little courage (given her audience), she went on to say that public opposition is reinforced by negative publicity  but unfortunately, "...residents who find themselves close to nationally needed developments - whether nuclear, HS2 or shale gas -  will have some impacts (eg increased traffic and landscape) caused by that development. But the crucial impact here is that all impacts, whether from emissions, noise or traffic are closely controlled, limited and monitored"

She then turned to flowback fluid which is what comes back up the pipe once it has been used for fracking.

She said this was the most overblown issue of the inquiry.

Once again we can't agree. As our readers will know we have long regarded this as one of the most important issues in the process.

And once again she demonstrated the faith she has in the Environment Agency which we are unable to share. She said FoE had raised two issues, - whether Cuadrilla had underestimated the quantity of fluid that would flow back, and whether there was sufficient treatment capacity available to deal with it.

She went on to say the only planning issue regarding flowback was to do with the extent of storage needed on site and the scale of the transport required to take it to a treatment works.

She said the amount stored on site is limited by the EA permit and cannot be exceeded, and even if they had underestimated the quantity that would flow back it would probably not be more than five additional two way vehicle movements a day.

She went on to deal with the discrepancy in Cuadrilla's 'calculations' of flowback, and to be honest we struggled to follow her argument here. As soon as this 'discrepancy' came to light, we were (correctly) advised by one of our readers (who eats such details for breakfast) that it was not an arithmetic error, but an written error in the sense that the descriptions of "per well" and "per site" had not been used correctly in relation to the four wells per site.

Some people had seemed to suggest the error meant that Cuadrilla had mis-estimated the flowback and it was actually 4 times greater, whereas, from what we could see, Ms Lieven stood on the other side of that fence and said No, they might have mis-estimated the opposite and it was 4 times less.

But. she said, in any event, the availability of treatment capacity it is not a matter for this inquiry. She said if availability became a problem, Cuadrilla would have to find another treatment facility, or store it temporarily at a permitted facility, or, if all else failed, they could slow down or stop the flow using a 'choke manifold' (which seems to be some sort of a tap)

This may be right, but we understood her to say the purpose of that manifold is at least in part to 'let off steam' to reduce the pressure if they get early warning of tremors forming, and if that were to become necessary, we wondered what might happen if there isn't anywhere for the flowback to go when a pressure reduction is needed as a result of threatened tremors.

Perhaps the EA will have that covered as well.

Ms Lieven went on to address the Monitoring Arrays and overwintering birds before turning to the planning balance and concluded that because all the impacts were mitigated, there was no breach of the development plan, so the proposals do accord with it, but even if they didn't  - there are no specific shale gas policies in it, and the factors weighing in favour of the development "clearly and demonstrably outweigh any negative factors" and the planning balance can only result in allowing the appeal.

Her optimism rather put us in mind of that cheery Press Officer who spoke for Saddam Hussein in the Gulf War.

 Inspector's Questions

The Inspector then asked Ms Lieven about her views on whether the exploration and monitoring applications should be treated as one consideration or separately. Ms Lieven said she thought the applications should be dealt with separately, and on their individual merits

The Inspector also asked about the 3 hour period that Ms Lieven had said that hydraulic fracturing would need when it was undertaken, and she wanted to check the accuracy of that 3 hours which, she thought Ms Lieven had said earlier in the inquiry, was a 'minimum' period with a range of probably up to 5 hours during the day.

Ms Lieven took advice from behind and said it the three hour figure was an 'average'. It was not the minimum, but she said "I'm instructed it is not the maximum" adding as an afterthought "But Madam, to be fair it's not conditioned" by which we think she meant it was an indicative average and not one Cuadrilla would expect to be held to.

The Inspector then asked whether Ms Lieven had any disagreement regarding the matters of legal interpretation and approach that Mr Evans had set out in the answer to her question after he had summed up.

That caused an unusually long think before an unusually hesitant answer came from Ms Lieven, and to be honest when it did, it was not something most people in the room would understand.

But Ms Lieven added an afterthought, and there followed what we thought was a telling oral exchange, so we've reproduced it here verbatim.

Ms Lieven:
"But what I,..... I think what may be relevant, to say Madam, is that it is very important that you and the Secretary of State don't, ....well you don't recommend and the Secretary of State doesn't impose conditions simply in order, as it were, to be seen to be doing something, where there is actually no planning justification. "

Inspector:
"Well, I don't think that's been suggested to me by anyone...."

Ms Lieven:
"Well, Madam, I'm not quite sure, because I think in relation to noise it may be. In order to impose a condition on noise, there has to be shown to be an adverse effect"

We're pretty much sure this shadow boxing was about the 'below 42 dBA' night time noise and whether it that noise had been shown to have had an adverse effect. We thought it had such an effect, and we also thought that by invoking this exchange, Ms Lieven worried that it might have had.

The Inspector then asked about difference of opinion between Ms Dehon and Ms Lieven regarding the "Paris Agreement" and asked Ms Lieven if there was any [case?] law to which she wanted to refer the Inspector.

Ms Lieven said

"Stage 1 is clear madam, it is not enforceable in domestic law. There is no possible basis upon which it could be enforced under domestic law. To be enforceable in domestic law it would have to be an Incorporated Treaty, and it is not an Incorporated Treaty.

Stage2 is, is there any enforceable mechanism in international law? Madam. thee is no law on it because the Treaty, the Agreement, was only signed in December, and what I do know is that there was a great deal of speculation at the time as to how it could be enforced. There is no legal enforcement mechanism within it. In other words, it doesn't go to the International Court of Justice. As far as I can recall, it doesn't fall within the terms of the Vienna(?) Treaty, so it's not  enforceable though the CJU Court of European Justice..."

She did say there may be some obscure academic argument somewhere about its enforceability, but she said the general view in December was that it was not enforceable.

Finally, the Inspector asked about HGV's belonging to people other than Cuadrilla which Ms Lieven had said would not be such a problem because they would probably not be driving the whole route and would be turning into farm drives etc. She asked whether that was simply an assumption or, if not, could Ms Lieven point her to the evidence underpinning it. Ms Lieven said it was a bit of both.
 

 COSTS APPLICATION


Ms Lieven them presented her evidence to support Cuadrilla's claim for costs.

We have never come across this before - at least not in this way.

We had always understood, and indeed agreed with the concept that, at a Public Inquiry, (where procedure and evidence is based on the principles of full advance disclosure), if one of the parties insisted on introducing serious new evidence during the course of the Inquiry, and that necessitated one or more parties to have to research and prepare a case to counter it, and / or if the Inquiry had to be adjourned for that to happen, then they should be liable for a claim to be made against them for the additional costs that have been involved as a result of their action.

But this was different.

This was a claim by Cuadrilla against Lancashire County Council as a result of them refusing planning permission.

Ms Lieven first quoted from Planning Practice Guidance which said that the aim of the cots regime to ensure councils "properly exercise their development management responsibilities to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay"

She went on to suggest what the guidance said sort of behaviour would fall foul of costs, before going on to cite her evidence on noise, and to argue that because of what Cuadrilla had proposed at the time, there were no grounds to refuse the application on the basis on noise.

She admitted that refusal on the basis of the Landscape impact was a more subjective judgement, but said LCC had failed to undertake a proper planning balance of the matter and taking into account national policy support for shale gas exploration.

She concluded that it was unreasonable "to the point of Wednesbury irrationality" (that's not to say all the people in Wednesbury are irrational, but rather it refers to a famous legal precedent involving Wednesbury Corporation in 1948), to refuse an application which meets a 'pressing need'

Mr Evans for LCC responded to say they resisted the costs application. He said Cuadrilla's fundamental case was that the application for costs was put forward on the basis of there being no reasonable grounds to refuse the applications.  He said there was one overarching point to make in response, and it was: "That was then, and this is now" and if the Inspector concludes that - as he believed to be the case, at this Inquiry, the Council has produced substantial evidence to justify the conclusion to which it came on the matter of noise.

He went on to explain the details of the substance of his arguments here.

He then said that, because there had been substantial justification provided at this point in time of the Inquiry, then that satisfied the reason for refusal so there was no problem.

This is all new to us and we were somewhat surprised, but it must be the case (based on what he said) that provided a justification can be shown now, then whether or not there was justification at the time the decision was taken is irrelevant.

That's very interesting to us, and assuming Mr Evans is right (and we've no reason to doubt that he is) we suspect a few folk on Fylde's Development Management Committee might like to ponder the implications of that position.

Mr Evans also made an interesting point noting that Cuadrilla had accepted the subjectivity of the landscape assessment, and he implied that even if LCC had been wrong on the noise issue, the appeal would still have been refused on the landscape issue which Cuadrilla seemed to be prepared to accept was a subjective judgement and one in which LCC's members were entitled to disagree with their professional officers.

We've shortened these arguments, but full detail is available via the webcast which will remain available for the next 30 days or so


And there the Inquiry ended after the Inspector had thanked everyone for the organisation of the Inquiry, and the public for their intelligent and helpful contributions.

The Inspector will now take all the documents away and study them in private.

We have no doubt that she has grounds to come to a positive or a negative view on the appeal. She has been presented with evidence that could be used to support either case.

The job she has to do is to allocate the weight she believes should be accorded to each of those arguments and then to put the arguments onto scales to show which case has more weight in terms of the legal and planning arguments that it must be decided on, and then to make that recommendation to Mr Clark.

There is a small issue lurking in the background in that there is a scheduled Judicial Review of LCC's granting of planning permission for monitoring at Roseacre when LCC had refused the actual application. That's due to be heard on 12th April in the High Court, and LCC have indicated they might ask for a 'stay of execution' that JR if the appeal decision has not been made by then (and we're pretty sure that won't have happened by then).

So how long will it be before the Inspector's report is published?

Well, in our experience, it is sometimes the case that the report is published at the same time as it goes to the Minister, but we imagine it is possible that it may not be published until after the Minister has decided.

We were given no indication (either way) by the inspector at the close of the Inquiry. So it is an unknown. Nor did she say how long she thought her recommendations would take to produce.

Based on our own experience of these matters, we think it's likely that if the report is published first, it will probably be around mid or late summer. Perhaps August.

After that, Mr Clark may take several  months to come to a view. That's partly because he's a busy chap, and partly because the Government lawyers will want to rehearse as many of the likely implications of a decision (either way) as they can, because they will know it is very likely they will face a further challenge (via a Judicial Review or European Court)  whichever side they come down on, and they'll want to have considered all the possibilities.

So we wouldn't be surprised to find it gets to Christmas before we get a final view.

It's also just possible that, if there are matters of significance that arise whilst the decision is with the Inspector or the Government, (eg a significant change in national policy), that there will be a re-consultation of the interested parties in the light of such a change, and that could extend the process even further.


So what did we think were  the main issues to come out of the inquiry?

What is counterbalance's own 'planning balance' analysis? (We have form at getting this sort of thing both right and wrong in the past, so readers may not want to place too much reliance on it :-))......

Planning Policy
Essentially, without the 'Ministerial Statement' that Cuadrilla kept quoting, the weight of evidence is probably to refuse. That's probably why Cuadrilla put so much weight on the Statement. Personally we don't think it deserves the weight Cuadrilla gave it, so on balance we come down on the side of refusing the appeal.

Landscape Character
The points here were all well made, and the Fylde is, by dint of its name, emblematic of the countryside it encompasses. But if you compare that with national need, we suspect it probably isn't a strong enough case to cause a refusal on its own, so we count this (in pure planning terms) as a 'neutral' or perhaps marginally in favour of allowing the appeal

Waste and Capacity
We thought the case made by FoE on this matter was compelling, but given that it was not a reason for refusal by LCC, there remains a niggling doubt in our mind about the weight that the Inspector will attach to it. Nevertheless, in case she does (as we think she should) give some weight to this matter, we say it would gravitate to refusing the application - especially when the specific data on Flowback and other matters is so unclear.

Transport
This is where a refusal at Roseacre scores highly. In our view, only a fool would believe that enormous 46 metre long HGV's could do anything but create mayhem on narrow country lanes. We were especially impressed by Mr Hasty's evidence about the risk of rollover and of the hot air from HGV exhausts causing horses - and their riders - serious risk - however slowly the lorries go past. In our view transport complications are a clear cut reason for refusing the Roseacre application and appeal.

We also thought that the traffic arrangements proposed for the Preston New Road Site were not satisfactory either. It may be possible to devise a workaround this using a sliproad, and we were surprised that Cuadrilla did not pick up this possibility.

Noise
This is where Preston New Road's own evidence was crucial. We thought Mr Stigwood's evidence was irrefutable and clear, and again it was clear to us that this proposed development is simply too close to residential property to meet the requirements of noise reduction which we believe planning policy does require and we think it ought to be refused on this basis.

Likewise, the Roseacre site will have a lower ambient background noise level at night, and even if there are less people to be affected there, we think it is  a valid an proper planning reason counting toward refusal.

Public Health
This was another matter majored on by FoE and, provided that emotional and mental health in the form of anxiety and depression are weighed in the balance along with physical wellbeing, we think there are just about sufficient grounds for the Inspector to recommend refusal on this basis. They certainly contribute strongly toward it if not.

Climate Change
Our readers who read between the lines of what we say will know that we're less moved by the human impact of climate change than  some folk. That's not to say we don't worry about it happening, it's just that our solutions would focus more on combating what we see as a natural trend. But what was undoubtedly shown in the Inquiry is the policy dichotomy at the heart of Government, which on the one hand expects to continue to use gas and fossil fuels and to develop shale gas for a role within that energy mix, whilst at the same time back-tracking from carbon capture proposals and signing up to agreements that make it more or less impossible to continue with gas beyond 2030, leaving a shale gas industry  active for only five years or so in all probability.

We certainly wouldn't want to put money into such a risky business on that basis, and we wonder how on earth anyone within the power industry could envisage any sensible future investment for their business (whether a power station or a renewable energy business) when government policy seems to change with every ministerial appointment and investment in power generation requires a generational period of policy stability to effect a proper return.

So we're confused about the value of this matter. On the face of it, we suspect FoE's case is probably the stronger in planning terms, but we're really not sure how much the Inspector will want to take this into account. That view probably reflects our uncertainty on the matter as much as anything else.

Economic benefits
This is another confusing aspect for us. The calculations on the immediate applications are clear and there is no contest.  22 jobs is neither here or there. And the damage to tourism and agriculture will more than eclipse these small gains. But the bigger question is whether it is appropriate to take account of possible future jobs if the industry were to develop. And if that were to happen, how long you should count on them for - 5 years? 10 years?

So we're really struggling with this. Most probably we'd say the longer term weighs slightly heavier against allowing the appeal (because of the uncertainty and the greater damage that will be done to well established Fylde industries, notably tourism and agriculture).

So overall, when that mix is weighed in the balance, and with specific reference to these sites - as opposed to the broader principles and without considering possible future development,  we would just and so come down on the side of refusing the appeals.


LESSONS
The one lesson we do take from the Inquiry is how sharply it has exposed the abject policy confusion that is at the heart of our present bipolar Government.

We have the National Planning Policy Framework which has removed guidance that had been tested and honed over time and replaced it with conflicting policies and such utter confusion to the extent that Ministerial Statements and other devices are now being rushed out when another policy hole is found. These statements are paraded as replacements for, or adjuncts to, national policy which has been adopted - not just by one political party - but by the whole Parliament and the Sovereign. We simply cannot support the idea Government by decree or diktat in this way.

We have one half of Government abandoning carbon capture schemes, and reducing subsidy on green energy to make shale and hydrocarbons more profitable in a falling-price market, and it is seen dashing headlong to support natural and shale gas, whilst the other half signs up to agreements that will cut the use of fossil fuels altogether and mean that shale gas may only have a realistic payback life of five or ten years anyway (if it gets that long).

And we have the drive for localism that champions decisions taken locally whilst at the same time Ministers are removing decisions from the hands of local people elected to take them, and delivering them for determination into the hands of central Government's chosen few.

What a way to run a country.

Consider these quotations from Greg Clark then see if you think he is speaking with a forked tongue....

Greg Clark's Ministerial Statement on Shale Gas 16 Sept 2015

  • "There is a national need to explore and develop our shale gas and oil resources in a safe, and sustainable and timely way."
  • "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."
  • "Appeals against any refusals of planning permission for exploring and developing shale gas, or against non-determination, will be treated as a priority for urgent resolution. The Secretary of State for Communities and Local Government may also want to give particular scrutiny to these appeals. To this end he will revise the recovery criteria and will consider for recovery appeals for exploring and developing shale gas. This new criterion will be added to the recovery policy issued on 30 June 2008 and will be applied for a period of two years after which it will be reviewed."

Greg Clark's Ministerial Statement on NPPF 27 March 2012
He said the NPPF that he was introducing on that day, would:

  • to put unprecedented power in the hands of communities to shape the places in which they live;
  • ensure that the places we cherish - our countryside, towns and cities - are bequeathed to the next generation in a better condition than they are now.
  • enshrine the local plan - produced by local people - as the keystone of the planning system;
  • recognise the intrinsic value and beauty of the countryside (whether specifically designated or not);
  • protect what we hold dear in our matchless countryside and in the fabric of our history.
  • take power away from remote bodies and put it firmly into the hands of the people of England.

We rest our case on the Government's policy conflict. Mr Clark has said it all.


But just before we finish, we'd like to make reference to two other matters.

First, we spoke with an oil and gas engineer of many years experience at the very first public meeting on this topic (and as we reported five years ago in Gas Exploration in January 2011).

It was his view that, given sufficient safeguards and a good calibre company of substance, it should be possible to drill and extract with few problems. He likened it to the aviation industry, saying that was possibly the most potentially dangerous industry we have, yet it is the safest form of travel because it has a relentless focus on the highest quality and maximum safety, irrespective of cost.

We were comforted by that view.

But our experience of progress in the UK's shale gas industry, from the Government's failure to even support the idea of 'Gold Standard' regulation let alone implementing it in a cogent an comprehensive manner with  dedicated regulator, and by their making the nominated regulator a cheerleader and advocate for the industry, or whether it is to do with the willingness of some of the companies concerned to address themselves to value (rather than excellence) in quality and safety, leads us to the conclusion that it is not yet an industry deserving of our trust.

That view is not helped when, as here, we very much welcomed Cuadrilla's implementation of the webcast of the Inquiry, only to find that it had selected a 'budget' company to host the service (the same company that we once used ourselves on the basis of cheapness)  - which itself was beset with technical difficulties and poor design/implementation of the concept.

To be fair, those shortcomings were addressed by Cuadrilla as the Inquiry progressed, but if that approach illustrates the prevailing philosophy, we're less than comforted or reassured by it.

Equally the same conclusions may be drawn from the 'discrepancy' in the flowback figures that emerged during the inquiry. We entirely understand that, in the plethora of documentation that has had to be produced, the scope for errors will exist. And again' once the matter came to their attention, Cuadrilla took steps to investigate and rectify the information.

But the nagging doubt remains that, if a discrepancy encompassing a magnitude of four times, can reach version 7 of Cuadrilla's official Environmental Statement without being spotted, and was actually found by the waste expert presenting the case for Friends of the Earth, then Cuadrilla's checking and supervisory oversight must be found to be wanting.

We do not know, and are therefore not in a position to make a judgement on this, but we wonder if it is to do with a structural approach that would use a low-staff core company that contracts out most of its supply and service requirements, leaving insufficient breadth of resident expertise within the core  to address what needs to be overseen.

Again, if that analysis were found to have some merit, it would not be one that we find reassuring.

Finally, we received a 'closing statement' from the Preston New Road Group, and although it has already been widely reported in the traditional media, we think it well sums up the closing view for residents and our readers, so we take the liberty of reproducing it here.

Pat Davies who chairs the group said:

"We've been fully present throughout the last six weeks of the Inquiry to ensure that at all times, the Inspector was made aware of the strength of public opposition to this appeal. It is our view that Lancashire has spoken and the decision has been made by the most appropriate authority.

Our elected councillors performed their role at last year's hearings with individual and collective responsibility to their constituents and we should be proud of them.

The main role at the inquiry fell to Lancashire County Council to defend their refusal decision.

Our role at Preston New Road and Roseacre was to support the Council and add further weight and value to those arguments.

Our friends at Friends of the Earth, as a key Rule 6 Party, put forward tremendous compelling evidence on health and waste water radioactive material disposal.

Serious concerns and questions remain unanswered. These questions, with the addition of climate change issues are a crucial part of this decision.


We rely on the inspector to again assess the evidence including this new evidence and propose the dismissal of these appeal to the Secretary of State."

In what we thought to be a telling conclusion she said:

"Preston New Road is already on a strategic, legal path to ensure should this decision be overturned, we will not stop until we obtain justice for our community.

The voice of this community must and will be heard."

Dated:  18 March 2016


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