January 15th, 2018 by James Goudie KC

Did the DoS for CLJ err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That was the basic question in Frackman v SoS for CLJ (2018) EWCA Civ 9.

The Court of Appeal said that the case did not raise any novel or controversial point of law. Nor had there been any error of law.  A reference to the CJEU was refused.  The SoS had not misconstrued or misapplied Policy.  Nor were his decisions vitiated by procedural unfairness.  Also dismissed, distinguishing Application by Friends of the Earth for Judicial Review (2017) NICA 41, were complaints that he had failed to heed relevant EU principles, that he had failed to act in accordance with environmental impact principles, and that he had failed to apply “the precautionary principle”.

The well-established and robust principles reaffirmed by the Court of Appeal include:-

  1. Planning policies should not be construed as if they were provisions in a statute or a contract: paragraph 14;
  2. The existence and nature of “indirect”, “secondary” or “cumulative” effects will always depend on the particular facts and circumstances of the project: paragraph 67; and
  3. An environmental statement is not expected to include more information than is reasonably required to assess the likely significant environmental effects of the development proposed, in the light of current knowledge: ibid.

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