Preston New Road Action Group v Secretary of State for Communities & Anor

Planning policies must be read in their proper context and with common sense. They are not construed as statutory provisions. A strategic minerals policy and its development-management policy should be read coherently, leaving the decision-maker to exercise planning judgment on the nature, duration, mitigation and restoration of landscape harm.

Environmental impact assessment must address the likely significant effects of the defined project. It need not assess a separate, uncertain future project which would require its own planning application and assessment. A planning authority may assume that specialist pollution-control regimes will operate effectively unless clear evidence establishes otherwise; that approach is consistent with the precautionary principle.

These conjoined appeals challenged the Secretary of State’s decisions to grant planning permission for shale-gas exploration and associated monitoring at sites in Lancashire. The proposed works included exploratory wells, hydraulic fracturing, testing and restoration, but not commercial gas production.

The appellants had unsuccessfully challenged the decisions under section 288 of the Town and Country Planning Act 1990. Dove J dismissed their claims in [2017] EWHC 808 (Admin).

The first appeal concerned the construction and application of development-plan policies, paragraph 109 of the National Planning Policy Framework, and procedural fairness at the inquiry. The second concerned environmental impact assessment, alleged indirect and cumulative effects of possible later production, climate-change reasoning, and the precautionary principle.

1. Both appeals were dismissed. The court’s task was confined to reviewing the legality of the Secretary of State’s planning judgments. It could not reconsider the planning merits of hydraulic fracturing or substitute its own view.

2. Policy CS5 of the minerals core strategy and Policy DM2 of the minerals local plan had to be read together as a coherent part of the development plan. Their references to protecting landscape did not prohibit every non-de-minimis temporary effect. The duration of harm, mitigation and effective restoration were matters within the required planning judgment. The inspector and Secretary of State lawfully concluded that the landscape and visual effects had been reduced to acceptable levels.

3. Policy DM2 did not make a positive contribution an additional precondition for permission. Its second limb applied only where appropriate. The decision-maker had to decide whether harm was reduced to acceptable levels and whether a positive contribution should be sought in the circumstances.

4. The policy for protecting and enhancing valued landscapes in paragraph 109 of the National Planning Policy Framework was a broad objective. It required an overall planning judgment, not an automatic finding of conflict whenever a valued landscape suffered temporary harm. The landscape’s local value, the temporary works, mitigation and restoration were relevant considerations.

5. There was no procedural unfairness concerning Policy EP11. The action group knew that its relevance was contested, cross-examined on the issue and made closing submissions. Fairness required a proper opportunity to participate, not a renewed opportunity after the inquiry had closed.

6. The exploration and monitoring works were a defined, free-standing project. Possible commercial production was a distinct and uncertain future project, requiring a separate application and environmental assessment if ever proposed. Its effects were neither direct nor indirect, secondary or cumulative effects of the exploration project. The environmental statement adequately assessed the emissions associated with exploration, including extended flow testing.

7. The Secretary of State did not act inconsistently by giving great weight to the need for exploration while giving no weight to hypothetical future national economic benefits from production. Nor did he breach the precautionary principle. He was entitled to rely on the relevant regulatory regimes and the evidence before him in finding no health impacts requiring refusal.

8. No reference to the Court of Justice of the European Union was warranted because the relevant questions were acte clair.

• Court of Appeal (Civil Division): dismissed both appeals and upheld the Secretary of State’s planning permissions for shale-gas exploration and monitoring.
• High Court, Planning Court: Dove J dismissed the statutory challenges under section 288 of the Town and Country Planning Act 1990: [2017] EWHC 808 (Admin).