NPPF support for on-shore oil and gas unlawful, High Court hears

Anti-fracking campaigners have told the High Court that the National Planning Policy Framework's (NPPF's) support for on-shore oil and gas development is unlawful, partly because it is based on outdated scientific evidence, in a second legal challenge to the document.

London's Royal Courts of Justice
London's Royal Courts of Justice

Pressure group Talk Fracking is seeking to overturn paragraph 209(a) of July's revised NPPF. This states that minerals planning authorities should "recognise the benefits of on-shore oil and gas development ... for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction".

But Talk Fracking's lawyers told the High Court that the government's support for on-shore oil and gas development, including fracking, is not based on up-to-date scientific evidence.

They argued that the approach is based on a 2013 expert report and the government has failed to take into account scientific advances, and therefore new material considerations, since then.

The 2013 report, by professor David MacKay and Dr Tim Stone, concluded that shale gas emissions were similar to those of conventional gas, and lower than coal or liquefied natural gas, the court heard.

That led to a 2015 written ministerial statement which said that fracking promised substantial benefits and could maintain energy supplies whilst renewable sources are further developed.

But Talk Fracking barrister, David Wolfe QC, said that, by the time of the ministerial statement, there were "already concerns about the correctness" of the 2013 report.

Paragraph 209(a) also "failed to give effect to the government's long-stated policy" to reduce greenhouse gases, he added.

In a July 2016 report, the Committee on Climate Change said fracking on a significant scale would be incompatible with the government's commitment to reduce greenhouse gas emissions by 80 per cent by 2050.

Wolfe further told Mr Justice Dove that the provision should never have been adopted without commissioning a strategic environmental assessment.

Talk Fracking's case is being heard alongside a broader challenge to the revised NPPF brought by environmental campaign group Friends of the Earth.

Defending the case, Rupert Warren QC, for the secretary of state for housing, communities and local government, said Talk Fracking and others had "persisted in failing to acknowledge" the true status of the revised NPPF.

Although it is a high-level policy document, which is treated as a material consideration in planning decisions, implementation of planning policy lies with local authorities, he said.

It is local authorities that create development plans and consider individual planning applications, and it is for them to carry out environmental assessments and consider competing policy aims.

The barrister added: "Support for shale gas exploration and development is a national policy position of relatively long standing."

Paragraph 209(a) is a "restatement of existing policy" that is "well established" and was confirmed in a written ministerial statement earlier this year.

The policy had been "updated and reiterated over time" and the government was not obliged to "revisit" detailed scientific evidence concerning the benefits, or otherwise, of fracking.

Mr Justice Dove will give his ruling on both Talk Fracking's and Friends of the Earth's cases in the new year.

R on the Application of Stephenson v Secretary of State for Housing, Communities and Local Government. Case Number: CO/3511/2018


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