Energy Voice | New UK Government guidance on fracking rejected

The Government’s new planning guidance relating to fracking has been found to be unlawful by the High Court.

Environmental campaign group Talk Fracking took legal action, arguing that the updated guidance failed to take account of scientific and technical developments on the environmental impact of fracking.

Giving judgment in London on Wednesday, Mr Justice Dove ruled that the Government unlawfully failed to consider scientific developments, and also failed to carry out a lawful consultation.

Welcoming the ruling, Claire Stephenson, who brought the claim on behalf of Talk Fracking, said the group was “delighted that the court has agreed in part with our arguments that the

Government’s policy on fracking is unlawful”.

The National Planning Policy Framework (NPPF), published in July, says planning authorities should “recognise the benefits of on-shore oil and gas development… and put in place policies to facilitate their exploration and extraction”.

The Ministry of Housing, Communities and Local Government (MHCLG) argued at a hearing in December that that part of the new guidance was simply a restatement of the Government’s previous commitment to fracking.

But campaigners said “significant and material developments in the understanding of the greenhouse gas emissions arising from fracking” had not been considered.

Mr Justice Dove found that “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”.

He added that the information provided by the group 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”.

But the judge rejected the contention that the Government unlawfully failed to consider the impact of the updated NPPF on its legal obligations on greenhouse gas emissions.

Ms Stephenson said: “The Government have continually sought to ignore public opinion on fracking, despite the overwhelming opposition on a national level.

“The lack of public consultation and the unbiased support for an industry, without any substantial underlying evidence, has been a cause for concern.

“The additional acknowledgment from the judge, that climate change is a valid concern for campaigners and councils facing fracking planning applications, is a big win.”

Talk Fracking founder Joe Corre added: “I’m very pleased that the court has clarified that the Government has behaved irresponsibly and recklessly with our democratic rule book. Their pretend consultation was a farce.”

Rowan Smith, a solicitor from Leigh Day, which represented Talk Fracking, said the judgment made clear that “the Government has to keep climate change science under review when formulating fracking policies in an open and transparent way”.

An MHCLG spokesman said: “Environmental protections are at the heart of our new planning rulebook, setting clear expectations for future development.
“We are pleased that the judgment in the case brought by Friends of the Earth confirms that we do not need to reassess the rules.”
He added: “We note the judgment in the case brought by Talk Fracking, and will now consider our next steps.”

Friends of the Earth’s case, which was that the NPPF was unlawful because it was published without an environmental assessment of its potential impact, was dismissed by Mr Justice Dove in a separate ruling.

Before the hearing in December, fashion designer Dame Vivienne Westwood and her son, Mr Corre, enacted an alternative nativity scene outside the Royal Courts of Justice.

Dame Vivienne said she was dressed as “the angel of democracy”, and was accompanied by Mr Corre as a shepherd and “three wise men”.

David Wolfe QC, for Talk Fracking, told the court the most up-to-date evidence on the climate impact of fracking was “plainly a material consideration” to be taken into account.

He submitted: “When the facts are said to have changed, the defendant needed to evaluate those facts to consider whether to change his mind.”

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