TALK FRACKING COURT CHALLENGE WIN: WHAT DOES IT MEAN?
On the 14 May 2019, High Court judge, Mr Justice Dove, issued a
judgment which declared that the Secretary of State for Housing, Communities and Local Government’s newly-added paragraph of the National Planning Policy Framework (NPPF) (paragraph 209(a) relating to onshore oil and gas development, including fracking) was in fact,
UNLAWFUL. This is the key paragraph 209 (a) that has been quashed by the Judge:
“Minerals planning authorities should:
recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction;”
Following this amazing outcome, and in light of the minister’s following announcement (here) the lawyers have prepared a legal briefing and Frack Free United have prepared draft motion for councils and politicians alike. All are included here.
We urge local activists to disseminate this motion and briefing note, with emphasis on these two points below, to their local and national representatives.
(i) Para 209 (a) is no longer part of the “soundness test” when it comes to plan-making; and
(ii) Minerals Planning Authorities (MPA)and the Planning Inspectorate (PINS) must listen to arguments about new science on the climate change impact of fracking.
Please download and use this campaign guide
We have designed this campaign guide you need to take action. Please download this briefing that includes a template email to send to councillors
and politicians.
The email also includes a template motion for them to edit and use plus supporting notes which incude the legal Briefing from the Talk Fracking lawyers and a selection of climate studies showing the need for urgent action to prevent fracking in the UK.
Frack Free United Draft Motion
We have designed this motion to be a stand alone motion or for inclusion in any Climate Emergency motion for councillors to use:
This
Insert authority name here
a. Notes the widespread concerns raised across the country into the exploration of shale gas and recent earthquakes attributed to Shale Gas Extraction (fracking) across the UK;
b. Notes that on 14th May 2019, the High Court declared that paragraph 209(a) of the National Planning Policy Framework (NPPF) was UNLAWFULLY adopted on 24 July 2018 and quashed it and it is therefore no longer part of the NPPF
c. Notes that, consequently, paragraph 209(a) also no longer forms part of the “soundness test” in plan making, when planning applications for fracking are considered or when appeals are heard
d. Notes that, in light of the above, Minerals Planning Authorities and the Planning Inspectorate must now listen to arguments about:
• new science on the climate change impact of fracking• economic impacts of fracking and energy security
e. Notes that, in light of the above, public bodies can, having taken into account objections and other evidence, now depart from Government policy in the Written Ministerial Statements by adopting their own stance opposed to fracking
f. Notes that numerous local authorities such as Greater Manchester have adopted a region-wide policy of opposition to fracking
g. Notes that the local authorities that make up Greater Manchester and Sheffield City council will write into their planning policies a ‘presumption’ against any request to drill for shale gas
h. Calls on (xxx) to write into its planning policies and local plan a ‘presumption’ against any request to drill for unconventional hydrocarbons, including shale gas, and calls for all local authorities across the country to do the same.
By David Wolfe Q.C., Matrix Peter Lockley, 11 KBW Jennifer Robinson, Doughty St. Leigh Day
Summary
On 14 May 2019, the High Court declared that paragraph 209(a) of the NPPF was unlawfully adopted on 24 July 2018, and quashed it.
Paragraph 209(a) is therefore no longer part of the NPPF, nor part of requirements of ‘soundness’ when local plans are made.
Paragraph 209(a) also no longer applies when planning applications for fracking are considered, or when appeals are heard.
The fracking “Written Ministerial Statements” (WMSs) setting out Government support for fracking remain in effect for now. But they are no longer the ‘last word’ on whether fracking is to be supported. Planning authorities and Inspectors must also properly consider evidence and objections against fracking, and reach their own view.
Other public bodies which had supported fracking on the basis of it being Government policy also now need properly to consider objections and evidence against, and reach their own view.
Public bodies can also, having taken into account objections and other evidence, now depart from Government policy in the WMSs by adopting their own stance opposed to fracking.
In more detail
On 14 May 2019, the High Court (Mr Justice Dove) declared that the Secretary of State for Housing Communities and Local Government had acted unlawfully when he included a new paragraph 209(a), relating to on-shore oil and gas development (which includes fracking), in the new National Planning Policy Framework (NPPF) on 24 July 2018.
Paragraph 209(a) said this:
“Minerals planning authorities should: (a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction;”
The full judgment, explaining the judge’s full reasoning, is available here.
The simple point was that the Secretary of State should have considered up to date scientific and other evidence – including that submitted to him by Talk Fracking (and including the “Mobbs Report”) – before deciding whether to adopt paragraph 209(a). But he did not do so.
The judge’s order also ‘quashes’ paragraph 209(a). In other words paragraph 209(a) is no longer part of the NPPF. It follows that the 19 February 2019 version of the NPPF, which is still on the www.gov.uk website, is not legally correct anymore.
The Secretary of State has not yet said what, if any, action he is going to take in response to those developments.
However, it follows from the judge’s order that complying with paragraph 209(a) is no longer part of the requirements for ‘soundness’ when Minerals Planning Authorities are making local plans, or when planning inspectors are considering draft plans.
Nor is that paragraph to be taken into account when determining individual planning applications or appeals.
However, unless and until the Secretary of State withdraws the existing Written Ministerial Statements (WMS) dealing with fracking, they remain in force.
But, those WMSs now have to be seen in the light of the judge’s conclusion that the Government’s “in principle support for hydrocarbon extraction … will have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. These are conflicting issues which the decision-maker will have to resolve.” (paragraph 73)
In other words, a Minerals Planning Authority, or an Inspector considering an application for planning permission for a fracking development, is no longer constrained by a WMS as was sometimes suggested before.
It is clear that objectors will now be fully able to raise technical and other objections to the principle of fracking (including by referring to the latest scientific evidence). The approach taken, for example, at the planning appeal at Preston New Road - where the Inspector and the Secretary of State proceeded as if support for the principle of fracking had been settled by the WMS - should not now be repeated.
It also follows that other public bodies which had adopted stances supportive of fracking on the basis of that being Government policy need to revisit that position. They need, at the very least, to be receptive to and consider representations to the effect that they should no longer support fracking.
It is now also open to public bodies to take into account objections and evidence opposed to fracking in deciding not to follow Government policy on fracking, and then adopt their own policies which may be opposed to fracking.
David Wolfe Q.C., Matrix Peter Lockley, 11 KBW Jennifer Robinson, Doughty St. Leigh Day
17 May 2019
Key reports
New evidence published since 2015 completely debunks the government’s claim that fracking has a lower carbon footprint than imported liquid natural gas (LNG). Instead, scientific evidence has suggested that fracking exacerbates climate change.
The Mobbs Report, commissioned by Talk Fracking, has exposed many of the findings of the government’s keystone Mackay-Stone report as flawed. None of the evidence as outlined in the Mobbs Report was considered before publishing the revised version of the NPPF in July 2018.
In reaching his conclusions, Mr Justice Dove stated:
“What appears clear on the evidence is that the material from Talk Fracking, and in particular their scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although…this material was relevant to the decision which was advertised, which included the substance and merits of the policy.
“On this basis it clearly was obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects."
“As is clear…the MacKay and Stone Report was an important piece of evidence justifying the validity of the policy in the 2015 WMS, and the need to avoid adverse consequences for climate change were an important aspect of whether or not to adopt the policy.”
Burning the Gas 'Bridge Fuel' Myth: Why Gas Is Not Clean, Cheap, or Necessary
'The myth of gas as a “bridge” to a stable climate does not stand up to scrutiny. While much of the debate to date has
focused on methane leakage, the data show that the greenhouse gas emissions just from burning the gas itself are
enough to overshoot climate goals. We must reduce gas combustion rather than increase it, and the fact that methane
leakage will never be reduced to zero only makes this task more urgent.'
This report unpacks and debunks the enduring myth that gas can form a bridge to a decarbonized future. As the global crisis intensifies while the production and consumption of gas soars, it is clearer than ever that gas is not a solution to the climate crisis.
An IPCC special report on the impacts of global warming of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty.
The committee on Climate Change: Independent advice to government on building a low-carbon economy and preparing for climate change
The report’s key findings are that:
The Committee on Climate Change recommends a new emissions target for the UK: net-zero greenhouse gases by 2050.
In Scotland, we recommend a net-zero date of 2045, reflecting Scotland’s greater relative capacity to remove emissions than the UK as a whole.
In Wales, we recommend a 95% reduction in greenhouse gases by 2050.
A net-zero GHG target for 2050 will deliver on the commitment that the UK made by signing the Paris Agreement. It is achievable with known technologies, alongside improvements in people’s lives, and within the expected economic cost that Parliament accepted when it legislated the existing 2050 target for an 80% reduction from 1990.
However, this is only possible if clear, stable and well-designed policies to reduce emissions further are introduced across the economy without delay. Current policy is insufficient for even the existing targets.
Building the infrastructure to decarbonise the EU’s energy system by 2050 through large amounts of green gas is projected to be up to 36% more expensive than through energy efficiency and smart electrification, even in European countries with a cold climate, according to “Towards fossil-free energy in 2050”, conducted by Element Energy and Cambridge Econometrics, and commissioned by the European Climate Foundation.
Please download and use this campaign guide
We have designed this campaign guide you need to take action. Please download this briefing that includes a template email to send to councillors
and politicians.
The email also includes a template motion for them to edit and use plus supporting notes which incude the legal Briefing from the Talk Fracking lawyers and a selection of climate studies showing the need for urgent action to prevent fracking in the UK.