High court rules government’s fracking guidelines ‘unlawful’

Cases

Stephenson v Secretary of State for Housing and Communities and Local Government [2019] EWHC 519 (Admin)

In a case brought by anti-fracking campaign group Talk Fracking, the court found that the government had purported to consult on the merits of fracking policy when adopting the revised National Planning Policy Framework (“NPPF”). It was therefore material to consider scientific evidence, including the effects on climate change, and the government had failed to do so and had consulted unlawfully. Peter Lockley of 11KBW acted for Talk Fracking, led by David Wolfe QC, with Jennifer Robinson. Read more here.

Talk Fracking challenged the inclusion in the revised National Planning Policy Framework (“NPPF”) of a paragraph that directed Minerals Planning Authorities to recognise the benefits of fracking (and other on-shore oil and gas development), including its role in supporting the transition to a low-carbon economy, and to put in place policies to facilitate it. The Secretary of State had consulted on a draft of the revised NPPF that contained an identical paragraph. After a rolled-up hearing, Dove J held that the consultation had been unfair, because it had failed to take into account evidence supplied by Talk Fracking that suggested the climate change impact of gas from fracking was higher than the Secretary of State believed, and so called in to question the idea that fracked gas was an appropriate ‘bridge’ fuel to a low-carbon future. There was no dispute that this evidence had not been considered; the Secretary of State asserted that he was not required to consider it, because he was simply transferring pre-existing policy into the NPPF.

Dove J disagreed that any reasonable reader would have thought the consultation was so narrow. On the contrary, it invited views on the policy itself [52]-[57]. The consultation had therefore been unlawful. Dove J’s analysis of the true scope of the consultation also meant that Talk Fracking succeeded on the further ground that the Secretary of State, in disregarding Talk Fracking’s evidence, had left out of account obviously material considerations [66]-[69]. Dove J refused permission on a further ground (compatibility with targets under the Climate Change Act 2008), holding that this was a matter that would need to be considered in individual decisions on plans or applications – and so highlighting that objectors to specific developments are able to raise climate change issues. Dove J rejected a final ground that alleged that the relevant paragraph should have been subject to Strategic Environmental Assessment (“SEA”). That issue, in relation to the whole NPPF, was the subject of an unsuccessful claim, heard at the same time, brought by Friends of the Earth, whose submissions on the SEA issue Talk Fracking adopted – see [2019] EWHC 518 (Admin).

The Court will now hear the Parties on the appropriate relief.