Stephenson v Secretary of State for Housing And Communities And Local Government (Rev 1)

A consultation on proposed planning policy is unlawful where the public are reasonably led to understand that the policy’s substance is open for comment, but the decision-maker has a closed mind and fails to consider material responses. The consultation’s scope is assessed objectively from the public documents and context, not private intention. Scientific evidence capable of bearing directly on the policy’s evidential foundation may be an obviously material consideration. National policy supporting shale-gas development remains subject to climate-change commitments and must be weighed against contrary evidence in individual planning decisions.

The claimant, acting in support of Talk Fracking, challenged the adoption of paragraph 209(a) of the National Planning Policy Framework. She alleged failures to consider scientific evidence and climate-change obligations, failure to undertake Strategic Environmental Assessment, and unlawful consultation.

The proposed policy stated that minerals planning authorities should recognise the benefits of onshore oil and gas development and facilitate exploration and extraction. The central issues were whether the policy’s substance had been presented as open to consultation, whether the responses had been conscientiously considered, and whether the policy altered the Government’s climate-change commitments.

1. Grounds 1 and 4 allowed; ground 3 dismissed; permission refused on ground 2. Paragraph 209(a) and the decision adopting it were quashed. Mandatory relief requiring a fresh consultation or replacement policy was refused.
2. The consultation documents were to be read objectively from the standpoint of a reasonable member of the public, having regard to their purpose and context. The consultation invited views on the draft Framework and on the changes of policy in chapter 17. Nothing indicated that the substance or merits of the proposed oil-and-gas policy were excluded.
3. The defendant’s private intention merely to copy the 2015 Written Ministerial Statement into the Framework could not determine the legal scope of the consultation. Having presented the policy as open to consultation, the defendant had to consult at a formative stage and conscientiously consider the responses, applying the Sedley criteria endorsed in R (Mosely) v Harringay LBC [2014] UKSC 56.
4. The Talk Fracking material, including the Mobbs Report and its challenge to the scientific basis of the MacKay and Stone Report, was capable of bearing directly on the policy’s evidential foundation and its relationship to climate change. It was therefore an obviously material consideration which the defendant unlawfully left out of account.
5. Incorporation of paragraph 209(a) did not alter the Government’s commitment to the Committee on Climate Change’s three tests or the requirements of the Climate Change Act 2008. In individual plans and applications, in-principle support for unconventional hydrocarbon extraction had to be weighed against evidence concerning greenhouse-gas emissions and climate change.
6. Following Friends of the Earth v Secretary of State for Communities, Housing and Local Government [2019] EWHC 518 (Admin), Strategic Environmental Assessment was not required because the Framework was not required by law.
7. After quashing the policy and adoption decision, the defendant was free to decide how to respond. No mandatory order was necessary or appropriate. Costs were awarded to the claimant, subject to the agreed cap of £35,000.

First-instance judicial review. The judgment records no appeal. A subsequent order dated 14 May 2019 confirmed the quashing order, refused mandatory relief, and awarded costs to the claimant subject to a £35,000 cap.