Court dismisses appeals against lawfulness of planning permission for fracking at two Lancashire sites


Re: Preston New Road Action Group v Secretary of State for Communities & Anor [2018] EWCA Civ 9

This case considered whether the Secretary of State for Communities and Local Government had made an error in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing (fracking) at two sites in Lancashire.

The Court dismissed both appeals, holding that its role was limited to discerning the meaning of a planning policy “read in its ‘proper context’ and with some common sense” as opposed to “bringing public law principles to bear on the application of that policy in a planning decision”. Such policies were “written for planning decision-makers, in language intended to inform their exercise of planning judgment, not for judges considering the lawfulness of a planning decision when challenged”.

Lindblom J agreed with Dove J’s reasoning in the previous instance, that mineral development often entailed restoration of the land once extraction was finished and it would be surprising if the duration of the development and duration of any harm was irrelevant to the ‘overall assessment’ of harm for the purposes of the defendant’s policy. Accordingly the Secretary of State had correctly interpreted and applied the relevant planning policies.

David Wolfe QC was involved in this case.