Fracking – Local Government & Public Law; Property Owners and Private Law
1st Nov 2016
The government’s announcement on 6 October 2016 consenting to plans to drill and frack four exploratory wells at the Preston New Road site near Blackpool was reportedly described by the applicant, Cuadrilla, as a ‘milestone’. That description is no exaggeration. In 2011 Cuadrilla’s earlier drilling and fracking at the site had caused minor seismic activity and led to an immediate halt of work pending the outcome of investigations to see whether future fracking operations could be conducted safely. By the end of 2014 the government had concluded that they could, and used a combination of planning guidance and legislation – notably the Infrastructure Act 2015 – to drive the process forward. The outcome of the 2015 election, which returned a Conservative government committed to fracking, has given energy companies the confidence to pursue planning applications which are now being determined either at first instance or on appeal.
While central government takes the view that the recovery of shale oil and gas from underground is an energy priority, and oil and gas companies say they have the technology to do this safely, the general public remains largely unconvinced. In the rural and semi-rural areas where oil and gas companies have made planning applications to drill for oil, or to drill and frack for gas, there has been opposition and protest. How should local authorities respond? And how should individuals respond if they do not want to accept the discretionary payments available under the Infrastructure Act to persons who own land affected by fracking operations? The purpose of this article is not to answer these questions because the answers will depend on the facts of each case. But what can be done is to set out the context in which the questions must be answered.
In the case of the Preston New Road application, Lancashire County Council officers had recommended approval of the application whereas members, against legal advice but no doubt for wholly understandable reasons, had rejected it. The decision of the planning inspector, approved by the Secretary of State, overturned the members’ decision. The financial consequence is reported as being that the Council is facing a bill of £330,000 for the appeal and may have to pay costs to Cuadrilla. In the light of this outcome, local authorities will have to think long and hard before rejecting applications which officers have advised them to accept on the basis that relevant considerations, including the policy framework comprising national and local policy, have been complied with. They will, at the very least, need to have powerful and reasonable arguments for not accepting officers’ recommendations.
The usual means of challenging local authority planning decisions is by way of appeal for the disappointed applicant or by judicial review for a third party who is unhappy about the result. Parties who become involved on planning appeals as Rule 6 Parties include community or environmental groups or parish councils. But individuals, whether members of those groups or councils or not, who are directly affected by the decision or appeal decision may challenge it by way of judicial review. In general, judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the lawfulness of the decision-making process itself. A judicial review application is therefore not a further appeal from the decision or appeal decision but a more limited enquiry focused on the procedural correctness of the decision under review. If the decision was made in an unlawful manner, the court will require the decision-maker – here the local planning authority or a planning inspector – to make the decision again and get the process right. A successful application for judicial review may delay a fracking decision but is very unlikely to stop it altogether.
Fracking applications will frequently put local authorities in a difficult position. The Preston New Road case shows that their decisions can effectively be overruled by central government. The experience of the Lancashire County Council, where officers made a recommendation which members rejected, is likely to be repeated elsewhere. Council officers have different concerns from council members because members are accountable to constituents who are likely to worry about the impact on their quality of life and the value of their property. If they follow the example of the residents of Balcombe in Sussex, who in 2014 were joined by environmental campaigners and took to the streets to protest at another Cuadrilla site, there will be substantial police involvement whose cost will be met by the local authority and ultimately by its tax payers. How these difficulties for local authorities will be resolved remains to be seen. While it looks as if local authorities are caught between the rock of central government policy and the hard place of local anger, there will be strategies and steps which they can take to avoid or at least mitigate the impact of the flood of fracking applications that now seems inevitable.
Although material planning considerations do not include private law issues, there may be grey areas where the distinction between the two appears unclear. On 5 October 2016, the Nottinghamshire County Council Planning and Licensing Committee adjourned its determination of an application by IGas to drill vertical and horizontal wells at the East Midlands site at Springs Road, Misson, in Bassetlaw. The occasion for the adjournment was evidence produced concerning a land covenant which the committee appears to have thought may have affected both the drilling site and land 400 feet away owned by the Nottinghamshire Wildlife Trust, designated a Site of Special Scientific Interest, and home to Long-Eared Owls. Adverse impact on nature conservation areas is a material planning consideration, but from published reports it is not clear how the covenant, which apparently concerns the prevention of noisy, noxious or damaging activity to the land comprising the SSSI, can also be material. The purpose of the adjournment was to enable the committee to obtain definitive legal advice before its next meeting on 15 November 2016. Matters will no doubt become clearer in due course.
While the planning process and judicial review are the obvious channels for resisting fracking applications, they are more likely to end up delaying them rather than stopping them altogether. Neither, however, deals with property law questions which could create more serious obstacles for energy companies and may have to be litigated through the courts. Government has tried to deal with one of the most important of these questions by using statute to limit the rights of property owners, large and small, through provisions within the Infrastructure Act 2015. These provisions, which appear to have received little scrutiny in the Commons or Lords, are demonstrably intended to assist energy companies. What they do is cut back the scope of a property owner’s ability to rely on the protection against others formerly given him by the common law in trespass, nuisance and in negligence. These represent very significant changes to the law of property, but again it remains to be seen how effective they are when specific disputes arise between energy companies, property owners who allow their land to be used by those companies, and other owners whose property is or may be affected by drilling or fracking operations. This is a complex subject which I hope to deal with in a future article.
Paul Stafford Call 1987