The UK government has successfully defended a legal challenge against its decision to adopt a new National Planning Policy Framework (NPPF) in England last year, but guidance contained in that framework concerning 'fracking' has been ruled to be unlawful.
The mixed fortunes for the government came in two rulings issued by the High Court in London on 6 March.
Planning law expert Iain Gilbey of Pinsent Masons, the law firm behind Out-Law.com, said the decision in the fracking case would be "uncomfortable and inconvenient reading" for the government.
In that case, the High Court partially upheld a challenge anti-fracking campaign group Talk Fracking brought against paragraph 209(a) of the NPPF 2018. That paragraph requires minerals planning authorities to "recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, 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".
Paragraph 209(a) is relevant to planning applications for fracking works. Fracking is a process which involves pumping water at high pressure into rock to create narrow fractures through which trapped natural gas can flow out and be captured.
The government opened a consultation on changes to the NPPF in March last year and finalised the Framework in July. However, the High Court found that in drawing up paragraph 209(a), the government had failed to take scientific and technical evidence put forward by Talk Fracking into account and that it had not followed principles established in case law which set out the requirements for a fair and lawful consultation exercise.
Those 'Sedley' principles require, among other things, for consultations to be framed in a way that allows for 'intelligent consideration and response' and for consultation responses to be 'conscientiously' considered in the decision-making process.
"What appears clear on the evidence is that the material from Talk Fracking, and in particular their scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although on the basis of my conclusions as to what the reasonable member of the public would have concluded as to the nature and scope of the consultation, this material was relevant to the decision which was advertised, which included the substance and merits of the policy," Mr Justice Dove said in his ruling.
"On this basis it clearly was obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects," he said.
Gilbey said there are a number of options open to the government to how it might respond to the ruling.
"The safest approach is for it to open a new consultation on paragraph 209, followed by a further revised Framework – the government recently issued a revised Framework in response to a 2018 ruling by the Court of Justice of the EU (CJEU) in relation to habitats," Gilbey said.
"They could also decide to revise the Framework by removing the paragraph altogether and avoid another confrontation with Talk Fracking. Alternatively, the government could prefer to take things to the next level – in 2015 the High Court reached similar conclusions regarding a government consultation exercise only for that judgment to be overturned in the Court of Appeal," he said.
In the second case, Friends of the Earth argued that the government had breached the requirements of EU law by not subjecting the NPPF 2018 to a strategic environmental assessment (SEA). However, Mr Justice Dove ruled that government was not under a legal duty to conduct a SEA.
The judge examined the wording of the EU's SEA Directive and CJEU case law in reaching his decision. The Directive aims to ensure environmental considerations are factored in to the preparation and adoption of 'plans and programmes' concerning future development. Mr Justice Dove said, though, that the NPPF 2018 fell outside the scope of the definition of 'plans and programmes' in the Directive.
Gilbey said the ruling was a "characteristically thorough judgment" that had reached a "sensible conclusion".
"It is interesting that we spend so much time agonising about the meaning and impact of the NPPF – the meaning of five words in one paragraph was eventually the subject of a case in the Supreme Court – yet Mr Justice Dove characterised it as a 'voluntary measure' of less statutory significance than a neighbourhood plan in the planning balance," he said.
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