Preston New Road Action Group v Frackman & Ors

Planning policies must be interpreted objectively and in context, but their application commonly involves planning judgment. A strategic policy requiring landscapes to be protected from harm does not necessarily prohibit temporary, reversible harm where a more detailed policy permits demonstrable harm to be reduced to acceptable levels. The protection of valued landscapes under paragraph 109 of the NPPF requires an overall assessment, including duration, mitigation and restoration. A policy supporting development that makes a positive contribution to residential amenity does not make such a contribution an independent condition of acceptability where the policy separately requires demonstrable harm to be eliminated or reduced to acceptable levels. An environmental statement for exploratory development need not assess hypothetical future production requiring fresh planning permission. Planning decision-makers may rely on parallel regulatory regimes unless a regulatory gap is demonstrated.

The claimants brought statutory reviews under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s decision to allow an appeal and grant permission for exploratory shale-gas works at Preston New Road. The challenges concerned the interpretation and application of landscape, residential-amenity and minerals policies; alleged procedural unfairness arising from the developer’s position on policy EP11; the adequacy of the environmental statement; and reliance on regulatory regimes in assessing health and environmental risks.

The central issues were whether temporary landscape harm conflicted with the development plan and paragraph 109 of the NPPF, whether the environmental statement had to assess later production or extended gas use, and whether approval was irrational in light of the precautionary principle and evidence concerning public health.

1. First claimant’s Grounds 1, 2, 3 and 5. The court followed the approach in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13: interpretation of planning policy is a question of law, while application of policy language requiring judgment is for the planning decision-maker. Policy CS5 was a strategic policy and had to be read with policy DM2. Policy DM2 contemplated demonstrable harm being reduced to acceptable levels. Policy CS5 therefore did not impose an absolute prohibition on temporary landscape harm.
2. The Inspector’s reasoning was intelligible. Her conclusion that mitigation would conserve and protect landscape character concerned mitigation and restoration, while her finding of temporary demonstrable harm concerned the adverse effects during the works. Paragraph 109 of the NPPF was also a high-level strategic objective requiring an overall assessment of harm, duration, reversibility, mitigation and restoration. It did not mean that every temporary impact on a valued landscape necessarily breached the policy.
3. Policy DM2 did not require a positive contribution to residential amenity as an independent condition of acceptability. The Inspector was entitled to apply the separate requirement that demonstrable harm be reduced to acceptable levels, considering the number of properties affected, the extent and duration of the impact, and whether the outlook would become an unattractive place to live.
4. Ground 4. There was no procedural unfairness. Although the statement of common ground identified EP11 as relevant, the developer’s evidence and the cross-examination of its witness made the issue of applicability live before the inquiry. The claimant had a reasonable opportunity to adduce evidence and make submissions. The court nevertheless observed that unsolicited further submissions after the close of an inquiry should be exceptional.
5. Second claimant’s Ground 1. The environmental statement was adequate. The application concerned temporary exploration and appraisal. Later production would require fresh planning permission and environmental assessment. Extended flow testing connected to the gas grid did not require a separate cumulative-emissions assessment on the evidence, since there was no evidence that it would increase overall gas consumption or greenhouse-gas emissions. Paragraph 120 of the PPGM was consistent with the EIA Directive and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. No CJEU reference was necessary.
6. Second claimant’s Ground 2. The precautionary principle did not make the decision irrational. The Inspector was entitled to rely on the regulatory regime, having considered the evidence and finding no regulatory gap. The approach was consistent with Frack Free Balcombe Residents Association v West Sussex County Council [2014] EWHC 4108 (Admin).
7. Both claims were dismissed. Permission was granted for the first claimant’s grounds and for the second claimant’s Ground 1, but the challenges failed in substance. Permission was refused for the second claimant’s Ground 2.

First-instance statutory reviews of the Secretary of State’s planning decision. No appellate history is stated in the judgment.