It was confirmed in March that a consultation regarding the revision of the National Planning Policy Framework (NPPF), to add a paragraph relating to shale fracking, was unlawful.
The claimant, a supporter of Talk Fracking, challenged the adoption in July 2018 by the defendant Secretary of State for Housing and Communities.
The Department for Energy and Climate Change had commissioned and published a 2013 report concerning the likely potential greenhouse gas emissions from the production of shale gas, and the compatibility of the use of shale gas with the UK's climate change target. The report supported the view that the use of shale gas would be consistent with the Government's targets for climate change and greenhouse gas emissions, and perform better than alternatives such as coal and liquefied gas. This was further supported in a written ministerial statement in 2015.
In 2017, Talk Fracking published its own report containing detailed criticisms of the science underpinning the Government's conclusions. In 2018 the defendant published consultation proposals in relation to changes to the NPPF. Talk Fracking responded with a consultation, providing scientific evidence that the climate impact of fracking had been underestimated. The final version of NPPF was published in July 2018, recommending the recognition of the benefits of shale gas and for policies to facilitate exploration and extraction.
The claimant argued the defendant had failed to carry out a lawful consultation exercise because the policy had already been formulated in the written ministerial statement. Also that the defendant had unlawfully failed to take into account scientific and technical evidence, and had failed to give effect to the Government's obligation to reduce greenhouse gas emissions under the Climate Change Act 2008. The defendant stated that all that was done was the copying across from the written ministerial statement into the NPPF, and there was never an intention to revisit or re-examine the validity of the policy.
In regards to the consultation the Judge was "unable to accept that a reasonable reader, or a reasonable member of the public, would have been clear" that the consultation was not asking for submissions regarding the paragraph. It was confirmed the consultation exercise breached common law requirements, and was unfair and unlawful.
The Judge also confirmed the defendant had unlawfully left out of account obvious material considerations relevant to the decision. It was concluded both arguments regarding the consultation process and the evidence provided "were properly arguable, and for the reasons I have given, made out".
However it was held that the challenge regarding the defendants failure to give effect to the Climate Change Act 2008 was unarguable, as nothing in the revisions had altered the Government's requirement to satisfy its requirements.
Due to this the Judge permitted further time for parties to consider the implications of the conclusions and to make further submissions in relation to the appropriate relief.
