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Fracking Inquiry Decision?

Fracking Inquiry Decision?In this article we look at the 604 page report setting out the judgement and conclusions reached by the Inspector at the Fracking Inquiry at Blackpool FC earlier this year.

These conclusions are the matters that underpin the Secretary of State's recent decision.

SUMMARY
We begin with an Introduction, then we ask Was the decision democratic? Then we ask Was it lawful? and whether it was Morally right or not, before moving on to whose fault it was that the decision went the way it did.

Then we look at the details with an overview of the Inspector's Report before looking at each of the constituent parts that we thought were key issues. That is the Written Ministerial Statement, Flowback Fluid, Highway Safety (esp at Roseacre), Noise (esp PNR), Planning Policy and Landscape Character and Impact, Resident's Health, Light pollution, Carbon Capture and the 'Paris Agreement' on Climate Change, and the Economic Benefits and Disbenefits before summing up and asking So where does that leave us?

Finally, we look at the likely Next steps in this saga including Legal challenges by the PNR group as a separate Legal challenge made by a Roseacre resident

 INTRODUCTION

Everyone now knows the result of the Secretary of State's decision regarding Cuadrilla's exploratory fracking applications.

It was:

At the Preston New Road (PNR) location - to grant Cuadrilla's appeal for the construction and operation of up to four exploratory wells, hydraulic fracturing of those wells, their testing for hydrocarbons, and subsequent abandonment of the wells and restoration together with various ancillary works. This was as recommended by the Planning Inspector who chaired the Inquiry in Public.

At the Roseacre site, the appeal was refused as per the Inspector's recommendation, but the Secretary of State diverged from the inspector's recommendations by reserving the right to change his mind and grant the appeal if Cuadrilla could demonstrate satisfactory access arrangements.

More than that, he has exceptionally re-opened the Inquiry, and is appointing a new Inspector to consider the access arrangements when new information is submitted by Cuadrilla and others.

We have never heard of such a thing happening before.

Apparently, the logic for using a new Inspector is that he thinks what the 'previous' inspector said about the unsuitability of the transport situation at Roseacre, means she could be accused of having a prejudiced opinion if asked to consider it again, even with new evidence.

To be honest, this is complete tosh. It looks to us as though he simply wants someone more inclined to recommend granting the appeal on the basis of new information (whatever it says) being used to justify the granting of permission.

 SO IS THE DECISION DEMOCRATIC?

Needless to say, this decision by the Government Minister was not the result that many local people wanted to hear, nor was it what the Parish Councils, the Borough Council, or the County Council (who are the designated planning authority for such decisions) had voted to support.

Lots of unhappy local people are crying foul and saying the decision is a travesty of democracy.

We too are unhappy about the decision.

We also think it is wrong - because to our mind, in pure planning terms, an industrial development (of whatever size) unrelated to the existing agricultural land use constitutes an inappropriate use of farmland.

We also disagree because of the close proximity of existing residential developments at PNR and the problems of the existing minor country lanes that are the only ways to get about in Roseacre.

In short, our position is not one of objection to hydraulic fracking in principle, but we regard both locations as being inappropriate and unsuitable for such development.

But unlike many, we don't see the decision as undemocratic.

That's because in all the legislation we have ever seen enacted, the Government always reserves to itself a 'get-out' clause which allows them to override the normal procedure, and take decisions to itself if it so wishes.

It is not uncommon for this to happen - especially in planning matters.

Indeed it is an almost weekly occurrence when viewed from a national perspective.

What has happened here at Fylde is that the body properly charged with making the decision (LCC) and the smaller scale local Councils it consulted, all came to the view that this was not the right place for it.

The Government however, took the view that irrespective of the wishes of local people about it not being the right place, the importance of this industry to the UK's national interest is sufficient for it to override the views of local people, and we will just have to put up with it.

That decision is the Government's prerogative, and it is what the law allows them to do. We elected them to run the country and that's what they are doing.

So it is a democratic decision. They are the highest elected decision-taking body for whom we all have the opportunity to vote.

 SO WAS IT A LAWFUL DECISION ?

The question that remains after a planning appeal decision is only whether the judgement that the Government has exercised, and the decision they took constitutes a misuse of their power and was thus unlawful.

Before 2014, in order to consider that question, the usual process was that an independent Judge would have to decide whether the process by which the Government arrived at its decision:

  • Failed to follow the law, and their decision was thus illegal (For example if they had no power to take the decision or they acted beyond the powers they have).
  • Was fair and did not amount to an abuse of power. (For example if there are procedures laid down by legislation that Government must follow in order to reach a decision, it must follow them). They must not breach the rules of natural justice and they must be impartial. They must not reach a decision based on prejudice for example.
  • Was not irrational or perverse.

If the Judge came to the view that Government *had* misused its power, they could set aside the decision, and require it to be reconsidered.

The usual process for this used to be something called a Judicial Review.

This begins with a 'Letter before Action' which is sent to the decision-taking body, setting out the grounds which exist to believe power has been misused, and what should be done to set it right.

This may bring about the change that is sought. But more often than not, it results in a rebuttal of the claim by the decision-taker.

The next stage is an application to the High Court for permission to undertake a Judicial Review. This involves a written summary of the arguments being considered by a Judge sitting alone. The Judge decides whether the arguments made to them, and the counter arguments made by the decision taker, are sufficient to warrant the process of the decision-taking being reviewed.

If the judge does not agree, then the matter is ended.

If the Judge decides there is a case to be answered, they can grant permission for a Judicial Review to proceed, and there can be a full case hearing in the High Court.

We've seen such decision go either way, and you can never be absolutely sure what the Judge or court will decide.

For example, as we reported under the Queensway development, when the Minister decided not to grant the developer's appeal for planning permission at Queensway, they went to court and convinced the Judge there was a case, then convinced the Court that the then Secretary of State's decision was not lawful. It was set aside, and the Secretary of State had to reconsider it. That process resulted in a reversal of the earlier refusal of planning permission, and it was granted by the Secretary of State.

Equally we've seen requests for a Judicial review fall at the first hurdle when the Judge says there are not sufficient grounds to proceed to a full Judicial Review.

HOWEVER......

In 2014 the system changed in respect of planning, when new Civil Procedure Rules for a new 'Planning Court' were published.

The reforms seem to apply to the judicial review process as a whole as well, and the changes to the planning system were significant, including the establishment of a Planning Court and the introduction of a permission 'filter' for challenges made under section 288 of the Town and Country Planning Act 1990.

We have to admit to being unfamiliar with this change in the legislation and how it differs from the traditional Judicial Review process. From what we can see the processes seem to have been harmonised to quite some extent, but the new process is specific to planning.

We will look at the actions currently being pursued at the end of this article

We also see one other possibility to produce change in the decision, and we think this applies especially at the Preston New Road site. That is about the rights that people are granted under the Human Rights legislation. We don't know enough about this process to comment, so we won't, but we understand there might be grounds for people living close to the site to bring such a claim.

And it's not unreasonable to speculate that if that process gets mixed up with what look set to become tetchy Brexit negotiations and a generally 'fracosceptic' EU might be looking for 'issues' to use as bargaining chips in its negotiations around our exit, it's anybody's guess what they might say about the process.

So the question of whether the decision was lawful remains open at this stage.

 WAS THE DECISION MORALLY RIGHT ?

This is more iffy.

Star Trek followers will know all about the Logical Mr Spock's 'needs of the many outweighing the needs of the few' and it's a position that's difficult to gainsay, but we think there are some issues about the morality of using government powers to make specific regulations, tax benefits and ancillary decisions that favour and the establishment of a fracking industry in the UK.

We find it difficult to agree that such actions do not amount to at least an element of pre-determination.

The UK's support for, and parallels with, fracking being introduced into Canada have grown closer month by month as the story of fracking in the UK has unfolded. And if our readers have not done so already, we recommend a re-reading of our 2013 article Jessica Ernst v Canada.

We found Jessica to be a singularly impressive lady.

During her talk, we kept thinking to ourselves how surprising it was that a country like Canada - whose constitutional roots (mostly) formed in UK soil - could appear to be so distant from the clear concerns of its residents.

Not only did we struggle to believe it could be so, but it stretched our credulity beyond belief to think that a 'developed' government could set out to constrain both the voice, and the legitimate actions and protests of individuals like Jessica Ernst.

One of the organisers of the 'Jessica Ernst' event in St Annes was kind enough to introduce us to Jessica at the end of her presentation, and we put these specific points to her.

She told us all the things she had said during he evening were the true facts of what had happened to her in Canada.

Whilst we still could not believe that a British Government would be so overbearing, it did alert us to keep a more open mind.

We now view the UK Government's approach as being little better than the one that was in power in Canada at the time.

 SO WHO'S TO BLAME FOR THE DECISION?

Ultimately, the 'blame' for the Government's current position in this matter (so far as Fylde is concerned), sits squarely on the shoulders of the great number of people who re-elected Fylde's current MP.

In doing so they sent a message to the Government.

We highlighted this matter in our 'Post Election Analysis' of 2015 where we said:

"In terms of our own MP, there's no change.

Despite the biggest and most effective Independent parliamentary campaign Fylde has ever seen, [by fracking expert Mike Hill] Mr Menzies slightly increased his majority.

At the same time, (and seemingly because of the 5,000 or so votes that each went to UKIP and to Mike Hill), Mr Menzies' share of the vote went down only by about 3%. Labour's went down 1% and the Lib Dems went down a massive 18%.

In 'Runners an Riders', [an earlier election article] we had thought our sitting MP might suffer a reduced majority tied into fracking and UKIP, perhaps a significant one, but we were wrong in that matter.

His majority was not significantly damaged at 3%.

The two combined options did take 10,000 or so votes overall (which was not a surprise to us), but they evidently came mostly from the Lib Dems, and much less from Fylde's Conservatives.

What this result shows is that, with the present parliamentary boundaries, it is most unlikely that anyone will be able to unseat a Conservative MP in Fylde, and we think it cements Mr Menzies in place for as long as he wants to be here.

We think this result also has significant implications for the future of Fylde.

As one of our readers wrote "Fylde has voted 'yes' to fracking and to unrestricted house-building in the countryside.

That's not strictly accurate of course, but the sense of it is right, and we're already seeing letters to the papers to this effect from those who see benefits in such developments."

So whilst many hoped that Government would refuse the appeals, it was not a hope that was supported by the electoral arithmetic.

So the Judgement is cast - at least for the moment, and the dice are now undoubtedly loaded in favour of the exploratory phase of fracking going ahead in Fylde.

Whether those who voted Conservative in the last election and - in doing so - sent the Government a message that 'Fylde wasn't bothered about fracking' will come to regret their decision, remains an open question at this time.

 GOING INTO DETAILS

So having dealt with the overview, we now plan to look in more detail at the nooks and crannies of the Inspector's recommendations - at least in respect of what we thought were the main points from the Inquiry.

 THE INSPECTOR'S REPORT

As we said at the time, the six weeks of the inquiry were masterfully managed by the Inspector and her staff. No-one we spoke with had a bad word to say about her conduct of the inquiry. And we do not dissent from that view.

So where we do take a different view from the Inspector in the remainder of this article, it's not about the process of the inquiry, nor is it about the points made by any of the parties, it has to be about the conclusions drawn from the evidence she heard, and the judgements made by the inspector, from which she has formed her conclusions and recommendations.

As an aside at this point, our readers might recall the Inquiry into the death of Dr David Kelly undertaken by Lord Hutton. (The one where popular opinion struggled to believe the suicide outcome). We recall reading a newspaper interview of another judge who summed up the rationale for the popular opinion in just four words "Nice chap; awful judge"

If his statement was accurate, it shows there can be no guarantee that any well conducted inquiry will reach the right conclusions.

 OUR TAKE ON THE KEY ISSUES

From our memory of the Cuadrilla Inquiry, the key points of the argument (and these are in our own choice of order of importance) were:

  • The (September) Written Ministerial Statement.
  • Flowback Fluid
  • Highway Safety (esp at Roseacre)
  • Noise (esp PNR)
  • Planning Policy and Landscape Character and Impact
  • Resident's Health
  • Light pollution
  • Carbon Capture and the 'Paris Agreement' on Climate Change
  • Economic Benefits

 THE (SEPTEMBER) WRITTEN MINISTERIAL STATEMENT

This was all about a Statement rushed out by the Secretary of State in September 2015.

After the Anti Planning Minister Nick Boles swept away most of the regulations and guidance that had served planning well for years, he introduced a simplistic (and in our view simply awful) 'National Planning Policy Framework' to 'replace' many of the parts that the bonfire of the planning regulations had destroyed.

When gaping holes in the new NPPF became obvious, THE Government filled the gaps with 'Written Statements' some of which bordered on reintroducing the detail of the former policies and guidance that had been lost in the bonfire, but they were 'implemented' without having the benefit of proper scrutiny and balanced arguments for and against various aspects of them.

They were thus closer to a tinpot dictator's decrees that properly formulated and balanced policy.

The September Written Ministerial Statement (WMS) was one such piece of stupidity.

In essence, the Statement by the Minister first asserts that it should be taken into account in planning decisions and plan-making. It then purports to set out the Government’s view that there is a national need to explore and develop shale gas and oil resources in a safe, and sustainable and timely way, and it outlines the steps that it is taking to support this need.

We have huge problem with this approach.

Planning decisions are supposed to be objective and based on evidence.

But this Statement is not evidence, it is merely evidence of a desire on the part of the Government to introduce shale gas exploration.

It has not been subject to the usual tests that inform policy development, and in reality it is closer to a dictatorial decree than objective policy.

So we have no time for it. And despite its claim to be the Government's definitive position, that does not make it right.

And we do not believe that Ministerial Statements should ever be considered a shortcut to properly informed, objective, policy.

Friends of the Earth (most notably, but also supported by others), came from the same sort of position in the inquiry - but the Inspector has disagreed.

Needless to say, Cuadrilla and their advocates had made much of the Ministerial Statement, (treating it as though it was the Gospel according to Saint Gregg, a holy tract that overrode all else).

The Inspector has come down on their side.

She believes that the policy enshrined by the statement is not diminished because it has not followed the usual policy development process saying (at para 12.45)

"Although the WMS was not consulted upon, I do not consider that this materially affects the weight to be attached to it".

We disagree with her judgement in this matter.

She concludes

"the WMS should be taken into account in planning decisions and national policy recognises the need for shale gas exploration. In my judgement, that need is a material consideration of great weight in these appeals. However, there is no such Government support for shale gas development that would be unsafe and unsustainable......"

At this point we also have to disagree with the conclusion she has drawn from what we believe to be the flawed judgement she has made after hearing both sides of the argument.

We also note the dichotomy that exists when she says and believed the Government does not support shale gas development that would be unsafe.

The Government's chosen (independent) study by the British Geological Society concluded that it could be done safely provided their ten or twelve recommendations were implemented. To date we understand that only one or two of these recommendations have been implemented by the Government. The others lie cast aside in the long grass.

It cannot be possible to claim a safe operation when your own experts' recommendations have not been followed.

The Inspector has failed to acknowledge that the dichotomy exists, let alone commenting on the need to effect he BGS implementation before granting any permissions.

Finally, on the matter of the 'Written Ministerial Statement' and the weight to be attached to it, we refer readers to what we said in the concluding paragraphs of Week 6 of the inquiry, where we highlighted 'another' statement by the same Minister when he was introducing the NPPF for the first time in 2012. He said its purpose was 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.

The scale of the policy conflict between the statement on Localism (and in particular his last bullet point) and the Statement on shale gas, is so marked that it makes a mockery of the Government - and of Mr Clarke in particular.

We don't believe you can trust him at all when he says one thing and does exactly the opposite.

 FLOWBACK FLUID

Our regular readers will know this matter is a 'bee in our bonnet'

It is a matter we regard as being very important, but we recognise that few others give it the importance we do.

When pumped into the deep underground rock at such pressure, water (with various lubricant and biocide chemicals and added sand) forces fissures to form in the shale rock.

These fissures are filled with sand grains in suspension, and when the pumping pressure is eventually stopped, (and the first 'hydraulic frack' is completed) the fissures do not close completely. The sand grains leave 'pathways' through the shale rock that the gas can escape through to mix with, and help push the water back to the surface as geological pressures are re-exerted after the 'artificial' fracking pressure is gone.

This return of liquids is termed 'flowback fluid'.

When as much of the fluid as is likely to return to the surface has done so, the flow of gas itself continues as a useable and collectable resource - as the pressure of the forced-apart rock attempts to return to its original state of compression within the surrounding geology.

As well as the 'original' water (and the chemicals and some sand), the fluid pumped underground also picks up minerals from the shale rock whilst it is in intimate molecular contact with them.

This contact includes low level naturally occurring radiation that is present in the shale rocks.

Because of this, the flowback fluid may not be disposed of into the drainage or sewage system from site. It has to be tankered away to an approved treatment works (that is, unless a treatment facility licensed to handle low level radioactive material is built on the site).

We have several concerns over this aspect.

Firstly no-one actually knows how much or how fast the flowback fluid will return when the huge pumping engines are switched off.

Yes, there are estimates, but there is little or no practical experience.

So we see risks in calculating the temporary storage space needed for these huge volumes of water on site before it is tankered away for treatment.

We also see risks in not being able to adequately deal with the volumes that return to the surface in a timely manner.

We also have concerns about whether the pressure will be constrained by the closure valve known as a 'choke manifold' that Cuadrilla have specified, and we worry about the fluid leaking or spurting out onto the surrounding ground.

From what we heard at the Inquiry, we understood Cuadrilla 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 - as we said at the time - if that were to become necessary, we wondered what might happen if the on-site storage tanks are full, and there isn't anywhere for the flowback to go when a pressure reduction is needed as a result of threatened tremors.

We have a good friend who was attending a child's birthday party in the USA last year.

The house where the party was held was near one of the USA fracking sites.

During the party, a flowback valve at the nearby fracking site failed and the fluid shot like a fountain into the air. The column was taller than the house and carried by the wind so it landed on the house and garden and the children that were in the garden.

We have seen the photographs of this.

Apart from the worry and the unpleasantness of that event, there seems, thankfully, to have been no lasting repercussions to date.

We also recognise there are likely to be different safety standards and different regulatory regimes that might apply in the USA.

But what we think this incident does show is the fallibility of mechanical equipment.

Secondly, based on our experiences of the Environment Agency's collusion with Government to fiddle the Bathing Water Quality figures (by disregarding whole years of test results which would have resulted in certain failure, and by discounting individual samples within other years so as to avoid having to declare a catastrophic failure of our Bathing Waters on the Fylde coast) we have absolutely no confidence in the EA's willingness to properly enforce agreed standards.

We reserve special criticism for its use of 'Environmental Permitting Regulations' (which are nothing more than a license to pollute granted for either politically expedient or commercially attractive reasons).

In our view, the EA is most definitely NOT to be trusted to perform what we perceive to be its regulatory functions.

Thirdly, we are concerned about the availability of treatment capacity in the UK and the additional road tanker traffic that the millions of gallons of flowback fluid will need to get it to wherever in the UK it is to be treated before being returned to the drainage system.

Curiously, concerns over flowback fluid was not a matter that LCC chose to use as a reason to refuse permission.

However, the Friends of the Earth group - represented by what we thought was the very able Estelle Dehon, carved out some ground to stand on in order to make an issue of it at the Inquiry.

In her introduction, Ms Dehon had contended that 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.

The FoE expert on waste said the cumulative effects of both sites in the application would consume 68% of the UK's treatment capacity which was he said "Very significant".

He referred to a parliamentary answer setting out 3 UK sites that could deal with the flowback, one in Stoke, one in Leeds, and one in Middlesbrough.

Ms Lieven for Cuadrilla had said that Government appears to have said that in planning terms, the decision taker should assume that the regulators (such as the EA) would act effectively and Mineral Planning Authorities should assume that is the case and not try to second guess their ability.

So we were interested to see what the Inspector had made of these matters.

Sadly, she seems to have taken the 'Government Line' (which is 'Trust me, I'm from the Environment Agency').

She concluded:

"The EA, as the relevant regulatory body, has found the proposed arrangements for the final treatment/disposal of the flowback fluid at suitable water treatment facilities to be acceptable. It has expressed confidence in the accuracy of the Appellants’ prediction of the percentage of injected fluid that would return to the surface as flowback fluid. The various errors and inconsistencies identified by FoE in the documentation do not lead me to take a different view on this matter. They do not rebut the presumption that the waste disposal regime would operate effectively and as anticipated by the EA."

She also concluded:

"The EA has made its position clear that the capacity of the waste disposal facilities to take the flowback fluid is primarily an issue for the operator. That is why it has stated in the Decision Document that in the event that the operator could not find somewhere to take the waste it would have to take the necessary measures to ensure that no further waste of this type be generated until alternative treatment/disposal routes were available."

And she noted:

"The EA, in its response to Mr Watson’s query, has acknowledged that there are currently a limited number of sites permitted to accept this type of waste but considers that they have the capacity to accept the anticipated volumes of waste that would be produced by the permitted activities. It is also aware that the waste treatment industry is looking into increasing capacity nationally but they are waiting to see what is going to happen."

Finally, she concluded:

"In any event, I do not believe that there would be any material land use planning adverse impacts associated with the proposed means of treatment of the flowback fluid including the practical capacity of the treatment facilities to accept it. The Appellants have put forward a number of embedded and additional measures to mitigate the effect on the capacity of the treatment facilities. Ultimately, they would have the means to slow down or stop the generation of flowback fluid until treatment capacity became available.

I have also considered the scope for treatment of the flowback fluid to taken place on-site but I believe that the proposed arrangements represent the best option at this time. I conclude that the impacts of the proposed development on existing waste management facilities would be acceptable and would not prejudice the implementation of the Waste Hierarchy.

I am satisfied that the Appellants have demonstrated, by the provision of appropriate information, that all impacts associated with the production of flowback fluid by the projects would be reduced to an acceptable level. The proposed development would be in accordance with JLMWLP Policy DM2 and relevant national policy."

The Minister (not unexpectedly), agreed with her.

Boiled down to its essence, this says. The Government says I should trust the regulators to do their job properly and I can rely on what they tell me. Furthermore, if there isn't enough treatment capacity for the flowback fluid, the market will provide more, and if it doesn't then the fracking will have to be put on hold until there is capacity. So it's all OK.

We fundamentally disagree with her judgement in this matter. The EA absolutely CAN NOT be trusted to deliver adequate - let alone the 'Gold Standard' - regulation we were promised.

Secondly, we agree with Ms Dehon that the Inspector should not have relied on what the EA said, but should have come to her own conclusions as to he adequacy of waste treatment capacity. It is HER judgement in this matter, not that of the EA that is cogent.

And finally, she appears to believe that, having undertaken the fracking, and left the earth exercising huge pressures to close the fissures and force the flowback fluid back up to the surface, if the treatment capacity is not readily available, she appears to believe Cuadrilla can simply turn off he flowback tap and wait until more capacity is built.

We simply do not agree with this judgement.

We also hope no-one near to a fracking site has plans to hold a birthday party for their children.

 HIGHWAY SAFETY

Whilst there were proper and serious concerns - especially about articulated traffic exiting the site at Preston New Road, undoubtedly the main concern was at Roseacre.

In our view, no-one could have failed to be persuaded by the evidence of the avuncular retired transport operator and expert, Mr Hasty, who gave evidence for them.

The Inspector did not agree there were sufficient concerns at PNR, but she did find enough concerns at Roseacre to justify a refusal.

The SoS mostly agreed.

He noted Cuadrilla's under estimate of Cuadrilla's 'preferred route' by cyclists, pedestrians and equestrians. He shared her concern about the safety for HGV's trying to negotiate turns at the Dagger Road/Treales Road/Station Road junction. He also shared her view that the plans for passing places on Dagger Road had not been shown to be workable in practice.

BUT

Crucially, the SoS noted that the conclusions are really about Cuadrilla's inability to provide ADEQUATE EVIDENCE that they have properly considered and addressed the safety issues, and they had NOT DEMONSTRATED that various mitigation measures would be workable in practice.

So he has said that if Cuadrilla can produce evidence which shows that ADEQUATE consideration has been given and that mitigation measures can be DEMONSTRATED to be workable in practice, then he will consider further representations.

Not only that, but he proposes to reopen the inquiry to let Cuadrilla and other parties to put forward any further evidence on highways safety, and for parties to respond to any such evidence.

Then, subject to being satisfied that the highways safety issues identified by the Inspector can be satisfactorily addressed, the Secretary of State says he is MINDED TO GRANT PERMISSION for the works at Roseacre, and once he receives an addendum report from the Inspector he will proceed to a final decision.

The reality here is a mild chiding for Cuadrilla who have not made sows ear look like a silk purse so he can pass it at the first go.

He seems to think that you ought to be able to use shedloads of HGV's (and their follow-on entourage of tanker fleets) whenever fracking takes place, on the roads around Roseacre, without causing mayhem and possible loss of life.

If he was making this decision based on common sense, he would need a brain transplant.

As it is, we think he's making it on the basis of party dogma - quite possibly to accommodate his future career path. We will remember this man's name.

He is just plain wrong.

 NOISE

There were lots of arguments about how bad the noise from the operations might be and, as Mr Evans for LCC had explained, 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).

All the parties opposing the appeal stressed the noise impact as a reason for refusal.

In essence, the disagreement between those opposing the appal and Cuadrilla's position 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 (so it would be even below this level) so long as 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

We were particularly impressed with the evidence of PNR's noise expert Mr Stigwood, who delivered what to us seemed to be the definitive position on the matter. For example, he explained that our brains are attuned to listening for nightime sounds that are below 42 dBA (he used the example of a dog whining) which could induce waking from sleep because we are genetically attuned to listen for sounds that might represent a threat.

So what did the Inspector make of this?

Well, she starts out quite well by agreeing that the 42 dBA is a maximum or ceiling which may not in any circumstances be breached. She then goes into a lot of technical detail about studies showing how much people might acclimatise to new noises and sort of filter them out so they are not disturbed except at the beginning.

She agrees that adverse health effects can be experienced at a lower level than 42 dB, and notes evidence that identifies that adverse health effects at levels above 40 dB .

But she then goes on to say whilst that is below the level of 42 dB advocated by Cuadrilla, the evidence also recognises that much will depend on the detailed circumstance of each case.

It notes that complaints can occur in relation to night-time noise at a level of 35 dB, and that It also depends on the source of the noise with people experiencing more annoyance and being more likely to complain if they object to the source of the noise for other reasons, adding that this is likely to be the case with this scheme.

Coming to a conclusion, she notes that LCC contends that a planning condition setting the noise level at 35 dB would represent the limit which would be required to provide a minimum adverse impact.

She also notes that PNR and RAG say that the characteristics and nature of the noise, coupled with the high age profile of the area, demand a considerably lower noise level than 42 dB. and they argue for a 30 dB night-time.

But she disagreed with PNR and RAG as to the weight to be afforded to their arguments in this case, and explains her view that relevant guidelines already had regard to the needs of vulnerable groups in recommending a night-time limit of 40 dB.

Taking all the various elements of the noise guidance, policy and assessments into account, the Inspector says she was unable to agree the 42 dB advocated by Cuadrilla as being an appropriate level.

She also notes that although relevant guidance recommends 40dB for the primary prevention of sub-clinical health effects, she believes there are factors in this particular case that support a lower threshold for the level of noise exposure above which adverse effects on health and quality of life could be detected.

Taking all relevant factors into account, she considered that the 35 dB put forward by Dr McKenzie is likely to represent the lowest point at which observed adverse effects, as defined by PPGN, would occur.

HOWEVER,

That's not the end of it.

Because the noise legislation requires that decision takers do not place 'an unreasonable burden' on the company, so the inspector has to go on to look at a 7m tall acoustic barrier that is said to be necessary to achieve this noise attenuation. (We're told this is taller than the wall the Israeli Government is building to separate Palestinian land and people).

Cuadrilla say the cost of installing the additional 7m acoustic barrier will be £1.46m per site. (This, they say, is made up of (a) constructing and erecting the barrier and (b) the cost of the delay in having to re-erect it as the barrier moves with the drill rig).

They argue that their potential income from the Extended Flow testing (we think that means selling the gas from the exploratory fracking) will only be about £6M, and there will be considerable operational difficulties associated with working with an acoustic barrier that is 7m high.

For example, to access the drilling equipment for routine maintenance - or, in the event that equipment needed to be replaced - a section of the noise fence would need to be removed to access the equipment. (crane brought to site and so on).

They reckon this would add further cost over and above the £1.46m and delays to the operation.

The Inspector judged that noise mitigation measures would not require anything particularly complex or out of the ordinary.

She also said she found the estimated £1.46m cost per exploration site to be "all but meaningless in the absence of any context by which to judge it". (No details had been provided of the overall scheme construction and operational costs and budget), so she could not contextualise the suggestion of £1.46m.

But then she seems to back away from her earlier recognition that 35 dB represents the lowest point at which observed adverse effects would occur, and she moves toward easing the burden on Cuadrilla by saying she agreed with Cuadrilla that the Planning Policy says she must retain an element of proportionality.

But in this case neither the degree of improvement, nor the number of persons for whom that improvement would be achieved leads her to the conclusion that the level of 39 dB should not be sought. She said

"I am satisfied that a 3 dB reduction would make a noticeable difference for most affected persons and would reflect the requirements of PPGM."

So as far as we can see it is to be set at 39 dB.

She added that the available evidence does not disclose any other noise reduction scheme that could achieve further improvements without placing an unreasonable burden upon the Appellant. But she is satisfied that her chosen level would not place an unreasonable burden upon Cuadrilla.

The Secretary of State agreed with the Inspector.

We recognise the technicalities of noise assessment in terms of planning (which require you to do as much as is reasonably possible to minimise the noise), are 'beyond the ken' of most mortals, so we hesitate to argue on technicalities. But we do feel able to make two observations on this judgement.

The first is that, if reducing the noise to a level (35 dB) at which observed adverse effects health effects would not occur, means that the mitigation measures make the burden of doing so unreasonable, then it's probably the wrong place to do it altogether. So the application should have been refused.

What the Inspector and the Minister are really saying here is that getting down to a noise level that will not have adverse health effects on local people is not economically proportionate, so those affected will just have to put up with it.

We don't agree with this conclusion, and we think there is an alternative - because the second point we make is that, whilst planning law uses 'Statutory Noise Nuisance' to provides a 'getout' clause if you're doing all you reasonably can to minimise it, the good news is that if the noise becomes unbearable, and a High Court Judge (using common law noise nuisance - not Statutory Noise Nuisance - as his yardstick) agrees it is a Nuisance, he has the power to shut the whole thing down with immediate effect.

We saw this happen at Fairhaven Lake with the Jet Skis. The operators used all the latest measures to minimise the noise and that was that - Until the Judge was invited by local residents.

He said it was a nuisance and it had to be stopped.

It stopped the day afterwards.

So there may yet be hope.

 LANDSCAPE CHARACTER, PLANNING POLICY AND IMPACT

This is a very tricky area because it is almost all subjective, so you are reliant on sorting out the opinion of warring 'experts'

In our summary of week 6 of the Fracking Inquiry we thought that without the 'Written Ministerial Statement' that Cuadrilla kept quoting as its ultimate salvation, the weight of evidence in pure planning policy terms was probably to refuse. (We think that's probably why Cuadrilla put so much weight on the Statement).

In terms of 'Landscape Character' We recognise that Fylde is, by definition, 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.

With respect to formal Planning Policy, the overriding planning policy to be followed (even though it is hopeless!) should be the relatively new National Planning Policy Framework (NPPF).

Unfortunately (albeit we suspect intentionally), this has such broad themes that it can be read to mean whatever the Government says they want them to mean.

The NPPF ditched years of carefully balanced considerations, policy, and guidance in the broad field of planning, and replaced it with something akin to the thoughts of the Minister at the time.

The result is that where there was formerly transparency and certainty, there is now obfuscation and confusion which Government is interpreting to its own advantage.

We offer a very simple illustration of the mess that planning is now become.

The first requirement of the NPPF is that all other (subordinate) plans must be produced in conformity with it.

Fylde's case is slightly tricky in that it is preparing a new Local Plan and it is partway between the two. But to cover this eventuality, FBC submitted to Government, and Government agreed, that its existing policies were 'saved' (i.e. they remained valid)

LCC is in a similar position with some of its plans, but so far as we can tell, no-one believed any of Fylde or LCC's plans do not accord with the NPPF.

So it should follow that that if a Council's Planning Committee use those policies to determine planning applications and, as in this case, the objective, policy-based decision is to refuse the application, then (unless LCC had some procedural error when taking its decision) the Government should have nothing more to say on the matter (because they have effectively OK'd the planning policies on which the decision was taken by accepting they are in conformity with the NPPF).

But here's the rub.

Cuadrilla, and the Inspector, and the Secretary of State are all using Greg Clark's 'Ministerial Statement' which was published *after* the 2012 NPPF to - in effect - trump what the NPPF says.

Readers will remember in 'Render Unto Caesar' we reproduced a letter from Chancellor George Osborne to other ministers including Greg Clarke's Department of Communities and Local Government in September 2014 urging them to make it a personal priority to speed the process and smooth the path for fracking as he went on to outline in his letter.

In July 2015, the three main ministers provided a response. Readers can follow this link to download a copy of that officially 'Sensitive' response to Rt Hon George Osborne that was leaked to a national newspaper. To our reading it provides a pack of arguments that would support a claim for pre-determination

The Written Ministerial Statement was published in September 2015.

It was actually published by Amber Rudd MP and began:

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

There followed very little about the need for planning to balance competing priorities and a lot about the economic case for shale gas.

It seems to us that most of the case the Inspector makes in terms of planning policy is based on the Mr Clark's Written Ministerial Statement. To be fair there is a great deal about the esoterics of landscape quality and so on, most of which (in our view) does little more than make work for lawyers and planners. 

 RESIDENT'S HEALTH

This is another difficult issue for us as it's well outside our area of expertise, so we're not going into lot of detail.

Basically, there are competing perspectives about the impact it might have on health.

And in this case 'health' is being defined as a very broad palette of wellness or otherwise.

It seems to range from mental issues such as anxiety and or stress (that people might suffer as a result of worrying about a possible downturn in house prices), through actual sleep disturbance, and onward to the adverse healthy impacts of breathing in the fumes from diesel engines used for generating and so on.

As with the Environment Agency and others, the Inspector believes she is right to assume health regulatory regime system would operate effectively to control emissions and agrees that there would be no health impacts arising from potential exposure to air and water pollutants.

She also supposes that the processes would be regulated and all pathways that could potentially impact upon human health would be monitored and appropriately controlled, so for her these concerns carry little weight in the planning balance.

She did not believe the available evidence supported the view that there would be profound socio-economic impacts or climate change impacts on health associated with these exploratory works.

The Secretary of State agreed with the inspector and noted that there was no outstanding objection raised by Public Health England to the proposed development on public health impact grounds, so he is happy to go along with it.

But then, we remember how Ministers and regulatory agencies (admittedly mostly in the US, but to a lesser extent here) were quite happy to let the 2008 sub-prime mortgage fraud develop into a full blown banking crisis that almost collapsed the global financial system.

So it's obviously OK to trust the experts - isn't it?

We're not qualified to make judgements on The Inspector's judgement in this matter. But we are far, far, more sceptical of the motives and lack of thoroughness  that wanders abroad in Government circles today.

We do feel confident in saying that we were dismayed to find that both the Secretary of State and the Inspector concluded that a baseline health survey of local residents would not be necessary, or relevant, and that it would not be reasonable to impose it.

Quite frankly this is a disgrace.

Well, it is unless you purpose in not agreeing it is needed is simply to avoid being held to account for a deterioration in the health of local people as a result of the decisions you have taken.

 LIGHT POLLUTION

This is quickly disposed of.

The Secretary of State agrees with the Inspector that, given the mitigation that could be secured by planning condition and the temporary nature of the development the effects would not be unacceptable.

This is equivalent to that well know Anglo Saxon phrase 'Tough s**t!'

Just put up with it.

 CARBON CAPTURE AND CLIMATE CHANGE

Like health, this is another of those topics where you need an international law specialist to interpret what's going on.

Broadly, the position seemed to be, Britain was a signatory to a Climate Change agreement in Paris and Carbon Capture that (apparently) obliges the discontinuation of the use of fossil fuels in quite short order within the UK.

So FoE were on this like a shot, saying well, now we've agreed to discontinue the use of fossil fuels, all this fracking is immaterial because it will be banned shortly.

Ranged against this was Miss Lieven who got us into really deep water by implying that although the UK had signed the agreement, it was not necessarily going to abide by it (at least that's what we thought she said). Her actual words in response to a question from the Inspector were:

"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. there 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.

Furthermore, we since read somewhere that the UK Government was considering doing some carbon trading in order to support fracking.

Again this isn't our area of expertise, but we think it means they will stop burning more fossil fuels in some areas in order to be able to burn gas from fracking which is supposed to be less damaging.

The phrase 'Craftier than a wagon-load of monkeys' springs to mind if either of these is correct.

Seemingly sharing the same cart, the Secretary of State says he agrees with the Inspector’s conclusion that the issues raised as to how shale gas relates to the obligations such as those set out in the Paris Agreement and the Intergovernmental Panel on Climate Change carbon budgets are a matter for future national policy and not for these appeals.

In effect both she and he are saying they're not even going to think about it.

Once again, we think she is leaning too heavily on the Written Ministerial Statement in support of shale gas to justify this position.

Twisting the knife after sticking it in, the Inspector concludes....

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

Once again (and those that know counterbalance to be sceptical of the cause of *man made* climate change will probably be surprised to hear this), we don't agree with the judgement of either the SoS or the Inspector in this matter.

We think it was a matter that should have been weighed in the balance.

 ECONOMIC BENEFITS

This aspect was championed by Babs Murphy, Chief Executive of the North West Lancashire Chamber of Commerce who argued to the inquiry that there would be a bonanza for local businesses as the 'Fylde Gas Rush' took hold, and those businesses down and along the 'supply chain' were called on to grab their share of the profits to be had from the wonderful future that was awaited.

Ms Murphy confidently quoted surveys and statistics to prove her case that it would be an undeniably 'good thing' (As in 1066 and all that), if the appeals were given the go-ahead.

We've been to lots of public inquiries. But rarely, if ever, have we seen such an assertive performance as Ms Murphy gave taken apart and destroyed so convincingly and comprehensively (especially by FoE's Estelle Dehon - and even, in an equally capable but much more gentle manner, by LCC's Mr Evans) .

Readers can follow this link if they would like to reprise the exchanges.

The Inspector was a bit more helpful to Ms Murphy, and said that her case was really that when they refused the applications, LCC gave insufficient weight to what Ms Murphy thought were significant local and regional economic benefits that could flow from these particular exploratory wells and from the safe and responsible extraction of shale gas in Lancashire generally.

But the Inspector also noted that the Government's Planning Policy Guidance Note 186 (at para 120), says that individual applications for the exploratory phase of hydrocarbon extraction should not be assessed by taking 'account of hypothetical future activities for which consent has not yet been sought.'

(So you can't count what might be jobs in the future when considering this appeal, only the jobs that will come from this application).

And the inspector goes on to say she thinks 'the potential wider economic benefits of shale gas production at scale should be given very limited weight at this stage.' (That's about one step up from 'should be ignored').

And the rules also say that any economic community benefit is not a material planning consideration when deciding whether to grant permission.

So that brought us back down to earth, and to the jobs that would be created from these actual applications, (not where they might lead to in future).

That produced the magnificent total of 11 jobs at each site.

With a masterly understatement, the inspector noted "That, in itself, is not a high figure."

She also noted that 'locally sourced' labour was likely to be used for 'traditional site work', such as security and cleaning services rather than specialist skilled opportunities. So they might be expected to be comparatively low paid jobs.

She did point out that there would probably be some secondary jobs - for example at wherever the squillions of gallons of flowback fluid were treated elsewhere in the UK, or from the Midlands where specialist equipment might be ordered from, but she then went on to recognise that there were, at present, no estimates of such numbers.

She closed the topics down by saying:

"The ESs [Environmental Statements] conclude that the combined potential employment generation from both sites would represent a potential beneficial effect on the labour market. However, the conclusion reached is that there would be no significant (beneficial or adverse) effects on employment. Turning to the wider economic effects, the ESs conclude that the in-combination effects would have no significant (beneficial or adverse) effects on the local economy."

She then went on to consider and more or less dismiss a couple of other angles, before concluding....

"I conclude that the local economic benefits of the exploration stage would be modest. There would be limited job creation generally in low paid unskilled jobs. There would also be some opportunities for local businesses to provide services to the project and expenditure in local hotels and restaurants by people working on the projects. Apart from the job creation, these other benefits have not been quantified by the ES or the Appellants’ evidence. The national economic benefits would only flow from commercial production at scale at some point in the future depending to an extent upon the outcome of the exploration works. I attribute little weight to those wider benefits in the context of the exploratory works development which is the subject of these appeals."

Up to here, we completely agree with the Inspector's Judgement and conclusion.

But she then went on to consider what she termed the 'Economic Disbenefits'

These are what some of our readers would likely call, (and what one of the most go-ahead tourism business owners in Fylde did already say would be) the damage done to the image of the area and thus the local agriculture and tourism industries.

The Inspector recognised the scope and importance of these industries locally, and noted the many third party representations that had been made about this concern. But, using the same arguments that saw Ms Murphy's claim for economic benefits rejected - (i.e. you could only count the impact of these exploration phases into job and economic benefit creation) she reversed the arguments and came from the angle that the scale and scope attributable to these specific applications would hardly dent the existing tourism or agricultural industries on the Fylde plain.

Cunning line to take, we thought.

She also noted

"The North Western Chamber of Commerce disagrees with the argument put forward by several opponents of these appeals which suggests that the risks for tourism and farming and other established industries are inevitable. NWCOC is aware of firm support for shale gas operations in the local area from StayBlackpool, one of the primary tourist industry representative organisations on the Fylde Coast. Babs Murphy also knows of several local farmers who are equally supportive of opportunities to diversify their incomes as they do with other technologies. However, only around 3% of NWCOC’s membership is from the tourist industry and less than 1% from the agricultural industry."

and

"It must be acknowledged that there is likely to be some degree of economic disbenefit to local businesses in close proximity to the Preston New Road site, in the same way as for the Roseacre Wood site. However, any such impacts would be localised and of relatively short-term duration. The impact upon economic activity and tourism within the wider area would be likely to be very limited. These exploratory works would be unlikely to materially change the perception of Fylde as an attractive tourist destination or as a provider of dairy and other farming produce."

Then she concludes...

"I conclude that all social and economic impacts would be reduced to an acceptable level. There would be no material adverse impact upon the local economy including tourism and farming. The scheme would be in accordance with relevant Development Plan policies and there would be no material conflict with the NPPF aims for sustainable economic growth."

The Secretary of State agrees with the Inspector that the local economic benefits of the exploration stage would be modest and says he attributes little positive weight to these benefits.

In terms of national economic benefits he has a very slight difference with the Inspector. She says it has little weight, he says it has none. Vis:

"The Secretary of State notes that the Inspector considers little weight should be attributed to the national economic benefits which could flow from commercial production at scale at some point in the future, in the context of the exploratory works development which is the subject of these appeals. As the NPPF makes clear that each stage should be considered separately, the Secretary of State considers that in the context of these appeals, no weight should be attributed to the national economic benefits which could flow from commercial production in relation to these sites at scale at some point in the future."

In term of the Economic Disbenefits, the Secretary of State says he agrees with the Inspector that there would be no material adverse impact upon the local economy including tourism and farming.

We beg to differ.

Whilst we agree it must be true that two smallish developments in themselves would not be hugely damaging to tourism (and in the case of Blackpool, which simply could not get much worse, some folk might consider the sites to be a significant architectural improvement), but the point being missed in this section is the one we missed ourselves in the public health arguments.

It's not only the physical presence of drilling rigs and industrial sites that are the *only* cause of the tourism and agriculture problems, any more than it is the physical presence of extra diesel fumes that or noise induced sleep depravation are the *only* cause of medical problems.

Just as the ill health effects of anxiety and stress (produced by worrying about fracking coming to Fylde) are a real medical problem, so the PUBLIC PERCEPTION OF THE NATURE OF THE FYLDE AREA is what is going to be damaging for the tourism and agriculture industries.

As an example of what we mean, after Chernobyl was found to have affected sheep in the Lake district, our family stopped eating lamb, and did so for several years, We also stopped going for days out in the Lake District, and even now, we have probably been there less that ten times since Chernobyl went up.

And in a separate incident, when a farmworker friend told us his employer had a cow less than a year old - an age which after completion of their slaughter programme, the Government had said it was impossible for cows less than 1 year old to have BSE - but which nevertheless DID have BSE, we stopped eating beef and beef based products for at least 10 years.

Now. We accept we might be toward the more extreme end of those who worry about food quality.

We also accept we are not the most technically well informed family with regard to radiation or BSE.

But we do know we are not exceptional in being worried about the reliability of our food, and we do know as much - and perhaps even a little more - than the man on the Clapham Omnibus.

We make this point only to show how distrustful people are becoming of what they are told by sanitised press releases and the political classes.

A chasm of disbelief is self evident in the support being accorded to people and organisations like Trump, Farrage, Corbyn, and the growth of various anti-establishment parties across Europe.

What we think both the Secretary of State and the Inspector have missed in their judgements and conclusions on this matter is the damage to the reputational integrity of the Fylde Countryside that has already begun, simply by their announcement of the decision to approve the appeal for exploration.

It is the damage that is done to the perception of Fylde as being Lancashire's field - its soft green countryside, its pure green lungs - that they have missed.

And that is before an inch of a Fylde field is ripped up for a fracking site.

So we can't agree with the judgement and conclusions of the Inspector and the Secretary of State with regard to the matter of 'economic disbenefits'

 SO WHERE DOES THAT LEAVE US?

We can't agree that the process is undemocratic within the Parliamentary Democracy under which the country is run.

But we do find ourselves disagreeing with the Inspector's judgement and conclusions in quite a lot of the issues she has considered.

We also think there are some grounds to test the legality of the Minister's decision.

As one of our friends in the protest movement told us "It indicates and recognises "significant impact" harms and that these cannot be mitigated, then in the next breath, ignores it and recommends approval."

Quite

 THE NEXT STEPS

It's clear from the events and assemblies that are still taking place that those opposing fracking are not going quietly into the night. The large assembly near Maple Farm a few weeks ago provided ample evidence of that.

We spoke to a few of the people who took part and asked how they felt about the decision. "Heartbroken" was the answer from a Wrea Green lady. Another told us they had reached the end of what could be achieved by peaceful protest - implying that something stronger might need to follow.

The range of views we heard ranged from sadness to anger, all of which were filled with more than a little disbelief in a Government and a process they had trusted to deliver what - to the folk we spoke to - saw as simply common sense to refuse.

If it goes ahead, the big question will be whether opposition to what is proposed grows into a surging tide of opinion that could have electoral consequences, or whether it continues at more or less the same level, and remains a non-fatal political irritation.

But, of course, it may yet not go ahead

 LEGAL CHALLENGES

 PNR GROUP

At the conclusion of our final article on the Fracking Inquiry at Blackpool, we quoted an official of the PNR Group who told us "Preston New Road is already on a strategic, legal path to ensure should this [LCC refusal] decision be overturned, we will not stop until we obtain justice for our community. The voice of this community must and will be heard."

True to their word, we know of at least two potential actions being pursued at the present time, one from the Preston New Road Group, who are being represented by law firm Leigh Day. They wrote to the Secretary of State for Local Government to argue that his decision to overrule Lancashire County Council's refusal of planning permission for fracking in Fylde, Lancashire, is unlawful.

They argue that the decision is fundamentally flawed in its misapplication of planning laws and policy. It is also claimed that the Government did not properly consider the disproportionate effect that fracking on the site would have on vulnerable residents such as the elderly and school children nearby.

Yesterday, we heard that  the Government said it wouldn't change its mind, so the PNR group are now bringing a statutory challenge under section 288 of the Town and Country Planning Act 1990 against the decision. We don't know if this is an actual Judicial Review or whether it is the first 'filter' before taking the matter to the new 'Planning Court' we mentioned at the beginning of the article.

A press statement from the PNR group's lawyers Leigh Day issued yesterday says:

"Formal legal proceedings have now been issued at the High Court against the Government’s decision to grant permission for fracking in Lancashire.  

The legal challenge has been issued by the Preston New Road Action Group (PNRAG), represented by law firm Leigh Day.  

This follows a letter before action which was sent to Sajid Javid MP, the Secretary of State for Communities and Local Government, last month requesting the Government reconsider its decision.  

The Secretary of State refused to reconsider his decision, so PNRAG’s lawyers have applied for a statutory review of the decision under section 288 of the Town and Country Planning Act 1990.   

PNRAG argue that the Government’s decision to overrule Lancashire County Council’s refusal of planning permission for fracking in Fylde, Lancashire, is unlawful because the decision is fundamentally flawed as it failed to properly apply relevant planning laws and policy.   

On 29 June 2015, Lancashire County Council refused planning permission to Cuadrilla Bowland Limited to use a site off Preston New Road for fracking.  Cuadrilla appealed this decision, which, following a public inquiry, was recommended for approval by an Inspector and then confirmed by the Secretary of State on 6 October 2016.  

The government’s decision to allow fracking in Lancashire is only the second license to permit fracking (as opposed to purely exploratory work) in the UK. The first was in relation to a site in Ryedale, North Yorkshire in May 2016. Leigh Day is representing the claimants challenging the decisions in both cases.

A spokesperson from Preston New Road Action Group said:  

“This application was conclusively rejected on sound criteria, through local planning systems at Lancashire County Council. That decision should stand. Local planning and local democracy exist for a purpose, it is best placed to protect and understand local interests.

The UK has a proud history of democracy. It purports to represent the people whose solemn duty it is to serve. Yet this decision neither represents the people's wishes, nor those of their elected representatives in local democracy who possess crucial local planning knowledge. 

Our community has endured the threat of the fracking industry for almost three years. There is no social licence to proceed with fracking in Lancashire. Overwhelmingly, the communities affected said no. We continue to say no. We will not be silenced on this, for silence implies acceptance. There is no acceptance of a fracking industry.

The decision by this lone voice in Westminster to overturn local democracy, has reverberated throughout the country.  It begs the question of whether local democracy even exists, if it can be set aside in order to facilitate the interests of corporate industry.

Therefore, we seek to prove that this judgement is essentially flawed. We intend to invoke further legal routes to challenge this ruling and deem it unlawful.”

Rowan Smith, of law firm Leigh Day, said:

“Our clients believe that the government has made significant legal errors in overturning the Council’s refusal of planning permission to allow fracking on the site.  

For example, the decision appears to have been taken in breach of the Council's development plan, which restricts these types of developments, as well as in breach of the correct planning law tests.  

This matters to our clients, some of whom live within 300 metres of the proposed site, because they fear that any development, which is not granted in compliance with these laws and policy, would be unsafe and unsustainable for the local area.”  

It is hoped that a hearing will take place at the High Court early next year. "

counterbalance understands that Leigh Day is also representing Frack Free Ryedale and Friends of the Earth in their legal challenge of the decision by North Yorkshire County Council to allow fracking in Ryedale near the North Yorks Moors National Park.  An application for a judicial review of this decision has been made to the High Court, and the case will be heard at the Royal Courts of Justice on 22-23 November 2016

(From what has been said, it appears to us that the Ryedale action is a Judicial Review and the Fylde action is a challenge under s288.

We regret we are not clear whether the s288 claim that has just been made is the same as a Judicial Review, and we apologise to readers for our lack of understanding of the difference between them.

We have several readers who no doubt will know the difference, and if we receive further advice from them, we will add it as an update to this article.)

 ROSEACRE RESIDENT

There is also a separate challenge being made by a Roseacre resident.

Mr. Julian Burton has written to the Secretary of State for Communities & Local Government (Sajid Javid) to ask him to re-consider his decision to re-open the Public Inquiry. Mr. Burton has also asked for clarification as to why the original Planning Inspector (Wendy McKay) has been replaced.

The letter before action seeks clarification on a number of points and invites the Secretary of State to reject Cuadrilla's appeal in line with the recommendations of the Planning Inspector and to reverse his decision to re-open the Public Inquiry.

If the Secretary of State refuses to re-consider then Mr. Burton has indicated that he will consider bringing a statutory challenge.

A press release on this matter notes that Mr Burton said:

 "I am very disappointed that the Secretary of State has chosen to completely disregard the decisions previously made at all levels of local government including Lancashire County Council's Highways Officer, Planning Officer and Development Control Committee. He has also indicated that he is minded to disregard the clear recommendations of the independent Planning Inspector.

Cuadrilla have had numerous opportunities to find suitable mitigation measures for their fracking application and, over a period of 2 1/2 years, they have failed to do so. They are now to be given yet another opportunity at a re-opened Public Inquiry which is to be conducted by a new Planning Inspector.

The new Planning Inspector (as yet, unidentified) will have no prior knowledge of evidence previously submitted and will, therefore, be completely unfamiliar with the issues around the Roseacre Wood site.

This will mean yet more stress and uncertainty for the community and more cost and effort for the local campaigning group.

The Secretary of State can no longer be seen as impartial in this matter and his proposed re-opening of the Public Inquiry is, in my opinion, an abuse of process."

The Roseacre Awareness Group also issued a statement supporting Mr Burton, saying:

"We fully support Mr. Burton's action in this matter. We regard the proposed re-opening of the Public Inquiry as being grossly unfair.

We have spent a great deal of time and effort in making the case that the Roseacre Wood site is not suitable for fracking. The site is 11 miles from the strategic road network and the last 6 miles of the proposed route are made up of unclassified country lanes which are extensively utilised by vulnerable road users such as walkers, cyclists and horse riders. The safety of such road users must be paramount and the independent Planning Inspector made this clear in her report. She found that Cuadrilla's traffic mitigation measures were insufficient and that there was a real risk to residents and other road users.

In spite of the recommendations made by the Planning Inspector, the Secretary of State has indicated that he is minded to allow fracking at the Roseacre Wood site and has proposed the re-opening of the Public Inquiry to be conducted by a new Planning Inspector.

As things stand, we do not know when any re-opened Public Inquiry will be, its duration, how long Cuadrilla will have to submit its new mitigation measures and how long we will have to respond to them.

This is undemocratic and we will continue to press for a re-think by the Government.

There is no social licence for fracking at Roseacre Wood and there never will be."

We understand the possibility of a legal challenge to the decision being made by LCC also under consideration, but we understand that enthusiasm for such an approach is not rampant within the corridors of power in County Hall.

We also hear talk of a further separate challenge by Gayzer Frackman whose blind-siding approach sometimes catches people off guard, and always raises the profile of the cause.

So the question mark in the title of this article is there because whilst the decision has (nominally) been taken by the SoS, there is yet scope for it to change,

So the fat lady's not singing yet, and we expect to have more to report shortly.

Dated:  19 November 2016


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