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High Court rules that Mineral Planning Authorities are not bound by statutory definition of fracking and can apply their own wider definitions

6 November 2018

Marc Willers QCTim Baldwin

Marc Willers QC of Garden Court Chambers represented Councillor Paul Andrews, Mayor of Malton, North Yorkshire.

Councillor Paul Andrews was seeking permission at the High Court on 5 November 2018 to judicially review the Government’s decision to issue a written ministerial statement (WMS) on 17 May 2018 regarding the way in which local authorities should determine planning applications for fracking operations.

The WMS stated that local authorities should ‘recognise’ the statutory definition of fracking set out in the Petroleum Act 1998 (as amended by the Infrastructure Act 2015). Marc Willers QC argued that if local authorities were to adopt that definition – which relates to the volume of fluid used in the process, rather than the nature of the process itself – then it could lead to fracking operations (which use slightly less fluid than the statutory threshold) being granted planning permission in areas of outstanding natural beauty and national parks, such as the North York Moors.

Marc Willers QC contended that such a fundamental change in planning policy ought to have been the subject of a Strategic Environmental Assessment and that the failure to conduct one renders the WMS unlawful.

In his judgment on 5 November 2018, Mr Justice Holgate concluded that there was no need for a Strategic Environmental Assessment (SEA) of the 2018 Written Ministerial Statement (WMS) and he dismissed the application for permission to judicial review the WMS.

However, Mr Justice Holgate found that the reference in the 2018 WMS to an expectation that Mineral Planning Authorities (MPAs) ‘recognise’ the fact that Parliament has defined fracking in legislation was no more than that. He made the point that once MPAs had noted the existence of that definition, they were perfectly entitled to apply the wider definition contained in paragraph 129 of Planning Practice Guidance – provided of course that they explain their reasons for doing so (as the Joint Authorities in North Yorkshire have already done).

Drill or Drop reported Councillor Andrews’ response to the ruling:

“While we were disappointed that the judge did not allow us to proceed with the Judicial Review, we are delighted that he has stated that local authorities could disregard government planning guidance on issues such as the definition of fracking provided there was sufficient justification. This should allow The North Yorkshire Plan, which was developed over a number of years by our elected representatives in collaboration with local residents and the oil and gas industry, to be approved as it stands.”

Steve Mason, of the campaign network, Frack Free United, said:

“We did not win the case. But we won a concession from the judge. Local authorities can have their own definitions of fracking.

“The North Yorkshire local authorities can stand by their plan and put it into action even though it does not comply with the government definition.

“I would encourage other mineral authorities to look to North Yorkshire as a template.”

Hopefully other MPAs will also take heart from the judgment and ‘recognise’, but not adopt, the statutory definition.

This case has been reported widely including by Guardian and Drill or Drop.

Marc Willers QC is Joint Head of Garden Court Chambers. He led his colleague, Tim Baldwin, and was instructed in the case by Ricardo Gama of Town Legal LLP. Both Marc and Tim are members of the Garden Court Administrative and Public Law and Environmental and Planning Law Teams.

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