Neutral Citation Number: [2016] EWHC 3303 (Admin)
Case No: CO/3470/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20 December 2016
Before :
MRS JUSTICE LANG DBE
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Between :
THE QUEENon the application of
(1) FRIENDS OF THE EARTH LIMITED
(2) FRACK FREE RYEDALE (BY DAVID DAVIS AND JACKIE CRAY) / Claimants
- and -
NORTH YORKSHIRE COUNTY COUNCIL / Defendant
THIRD ENERGY UK GAS LIMITED / Interested Party
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David Wolfe QC (instructed by Leigh Day) for the Claimants
Sasha White QC and Gwion Lewis (instructed by Legal & Democratic Services) for the Defendant
Nathalie Lieven QC (instructed by Eversheds LLP) for the Interested Party
Hearing dates: 22 November and 23 November 2016
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Approved Judgment
Judgment Approved by the court for handing down. / R(FoE & Anr) v North Yorks CC & Anr
Mrs Justice Lang:
1. In this rolled-up hearing of a claim for judicial review, the Claimants seek permission to challenge the decision of North Yorkshire County Council (“the Council”) made on 27 May 2016 to grant planning permission to Third Energy UK Gas Limited (“Third Energy”) to carry out hydraulic fracturing, or ‘fracking’ on a site known as the “KMA well site” at Alma Farm, Kirby Misperton, North Yorkshire (“the Site”).
2. Hydraulic fracturing is a technique used to recover gas from shale rock. After drilling down into the earth, a mixture of water, sand and chemicals is injected into the rock at high pressure, allowing the gas to flow out to the surface. The term ‘fracking’ refers to the fracturing of the rock by this high-pressure mixture.
3. The First Claimant is an environmental campaigning organisation. The Second Claimant, Frack Free Ryedale (“FFR”), is an unincorporated association comprising of more than two thousand local residents concerned about proposals for fracking in their community. FFR is represented in these proceedings by leading members David Davis and Jackie Cray, who are local residents. Both Claimants made oral and written representations objecting to the grant of planning permission.
4. The UK’s oil and gas regulator, the Oil and Gas Authority (“OGA”), has granted petroleum exploration and development licences to Third Energy on land in the Ryedale district of North Yorkshire. Within this area, Third Energy currently has operational control of six sites where one or more gas wells have been drilled. One of these six sites is the KMA well site, which was constructed in the mid 1980’s.
5. There is a pipeline network which links all these wells to a gas-fired electricity generating station in Knapton (hereinafter “Knapton”), which opened in 1995. It is capable of supplying up to 41.5MW of electricity, enough to power up to 40,000 homes, by means of burning gas through a jet engine which in turn produces electricity which is then supplied to the National Grid. This process generates greenhouse gas emissions, notably carbon dioxide. Because of the dangerous effects of greenhouse gas emissions, which contribute to global warming, Knapton is operated pursuant to an environmental permit regulating emissions generally, and also a greenhouse gas emissions permit which specifically caps emissions of carbon dioxide, both of which have been granted by the Environment Agency.
6. The Council is the local Minerals Planning Authority for the area. On 9 January 2013, the Council granted planning permission for an extension to the KMA well site to drill and test up to two potential production boreholes. In the summer of 2013, Third Energy sunk the well in the extended area, known as KM8.
7. On 25 November 2014, Third Energy announced plans to move beyond its exploration of the Site to the production stage of releasing the gas discovered. As the proposed development required environmental assessment under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations 2011”), Third Energy applied to the Council for a scoping opinion.
8. Following consultation, the Council issued its scoping opinion on 9 April 2015.
9. On 29 July 2015, Third Energy applied to the Council for planning permission “to hydraulically stimulate and test the various geological formations previously identified during the 2013 KM8 drilling operation, followed by the production of gas from one or more of these formations into the existing production facilities…”. It estimated the maximum volume of gas as between 160-1600 million cubic metres over a lifetime of approximately 9 years. A table of gas emissions, based on samples taken at different locations, was attached. The application for planning permission was accompanied by a detailed environmental statement (“the ES”) based on the Council’s scoping opinion.
10. The Council’s Planning and Regulatory Functions Committee (“the Committee”) considered the application at a two day meeting and, having resolved to grant planning permission on 23 May 2016, a decision notice granting that permission was issued on 27 May 2016.
GROUNDS FOR JUDICIAL REVIEW
11. The Claimants’ grounds for judicial review were as follows:
i) The Council unlawfully failed to take into account (as part of its consideration of the environmental impacts of the proposed development) an assessment of the material indirect/secondary/cumulative climate change impacts arising from the burning of the gas at Knapton in the production phase of the development.
ii) The Council misdirected itself in law that it could not require Third Energy to provide a financial bond in relation to any long term environmental pollution impacts arising from the fracking.
12. In response, the Council submitted:
i) The Council was entitled not to consider the effects of emissions generated by burning the produced gas outside the Site for which planning permission was sought. Such emissions could not be calculated. In any event, any such emissions could not exceed the levels permitted at Knapton by the Environment Agency permits.
ii) The Council was entitled to decide not to require Third Energy to provide a financial bond, and to conclude that the financing of restoration and aftercare would instead be dealt with adequately by conditions 35 to 38 of the planning permission.
GROUND 1: ENVIRONMENTAL IMPACT ASSESSMENT
Legal framework
13. Art. 2(1) of the EIA Directive 85/337/EEC (as amended) requires Member States to adopt all measures necessary to ensure that projects likely to have a significant effect on the environment are made subject to an assessment of their effects, before consent is given.
14. The EIA Regulations 2011 implement the EIA Directive into UK domestic law. Under reg. 3(4) of the EIA Regulations 2011, a local planning authority is prohibited from granting planning permission for EIA development, as defined, unless before doing so it has “taken the environmental information into account and have stated that they have done so.”
15. EIA development is defined in reg. 2(1) as “Schedule 1 development; or Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”
16. It was common ground that the proposed development in this case was EIA development. Schedule 1 includes, at paragraph 14: “Extraction of… natural gas for commercial purposes where the amount extracted exceeds… 500,000 cubic metres per day in the case of gas”. Alternatively, Schedule 2, para. 2.2(d)(i) refers to “Deep drillings” where the area of the works exceeds 1 hectare; and para. 2.2(e) refers to “Surface industrial installations for the extraction of… natural gas” where the area of the development exceeds 0.5 hectares.
17. Reg. 2(1) defines “environmental information” as:
“the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development.”
18. Reg. 2(1) further defines an “environmental statement” as a statement:
“(a) that includes such information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part 2 of Schedule 4.”
Thus, the information required under Part 1 is such as is “reasonably required” whereas the information required under Part 2 is a mandatory minimum requirement.
19. Schedule 4 provides as follows:
“Information for inclusion in environmental statements
Part 1
1. Description of the development, including in particular:
(a) a description of the physical characteristics of the whole development and the land-use requirements during the construction and operational phases;
(b) a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;
(c) an estimate, by time and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc.) resulting from the operation of the proposed development.
2. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects.
3. A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
4. A description of the likely significant effects of the development on the environment which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a) the existence of the development;
(b) the use of natural resources;
(c) the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the applicant of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.
6. A non-technical summary of the information provided under paragraphs 1 to 5 of this Part.
7. An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information.
Part 2
1. A description of the development comprising information on the site, design and size of the development.
2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
3. The data required to identify and assess the main effects which the development is likely to have on the environment.
4. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects.
5. A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.”
20. Schedule 4 gives effect to Article 5(1) and (3) of the Directive, together with Annex IV. On reading the provisions in the Directive, I consider it is clear that the Part 2 information is a sub-set of the Part 1 information; the distinction being that the Part 2 information is the minimum which must be provided, whereas the Part 1 information is such as may be reasonably required. The Directive neither expressly states nor implies that “significant adverse effects” and “main effects” under Part 2 paragraphs 2 and 3 respectively, are necessarily limited to “direct effects” under Part 1 paragraph 4. On my interpretation, any of the effects listed in Part 1 paragraph 4 are, in principle, capable of being “significant adverse effects” falling within Part 2, depending on the circumstances in the particular case. However, I consider that generally it would be a contradiction in terms for “indirect, secondary, cumulative” effects to amount to “main effects” for the purposes of Part 2, paragraph 3.
21. It is well-established that it is for the local planning authority to assess what information should be in the ES and whether the information contained therein is adequate. The local planning authority’s assessment can only be challenged on public law grounds. See R v Rochdale MBC ex p. Milne [2001] Env. LR 416; R v Cornwall CC, ex p. Hardy [2001] Env. LR 25; R (Blewett) v Derbyshire CC [2004] Env. LR 29.
22. In R v Cornwall CC, ex p. Hardy, Harrison J. said at [56] to [58]:
“56. In dealing with the submissions that I have summarised, I deal first with the issue of the legality of the decision to grant planning permission. In considering that issue, the starting point must be Regulation 3, which provides that the relevant planning authority shall not grant planning permission for an EIA development unless they have first taken the environmental information into consideration. By virtue of Regulation 2(1), environmental information includes the environmental statement which itself has to include the information referred to in Part II of Schedule 4 to the Regulations. I agree with Sullivan J. that it is for the relevant planning authority to judge the adequacy of the environmental information, subject of course to review by the courts on the normal Wednesbury principles, but information that is capable of meeting the requirements of Part II of Schedule 4 to the Regulations must be provided and considered by the planning authority before planning permission is granted.
57. Paragraphs 1 to 3 of Part II of Schedule 4 are not, it seems to me, in a logically correct sequence. Firstly, the environmental statement must contain a description of the development (paragraph 1). Secondly, it must contain the data required to identify and assess the main effects which the development is likely to have on the environment (paragraph 3). Thirdly, it must contain a description of the measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects (paragraph 2). The requirement to provide the paragraph 2 information relating to the measures to be taken does not arise if, in the planning authority's view, there are no “significant adverse effects”. Similarly, the requirement to provide the paragraph 3 information relating to the data does not arise if, in the planning authority's view, it is not required to identify and assess the “main effects” of the development.