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Revisiting NPPF Shale Oil and Gas Policy: Unlawful Consultation and Decision-Making

  • United Kingdom
  • Real estate planning
  • Energy and infrastructure - Shale and unconventional

08-03-2019

The adoption of the NPPF’s positive policy for the exploration and extraction of on-shore oil and gas in the NPPF will have to considered afresh by the Government. The policy was challenged on behalf of an organisation known as Talk Fracking. This week’s High Court decision ruled that the consultation process which lead to the adoption of this policy was unlawful and unfair. There was a failure to take into account material considerations, in particular scientific evidence relevant to the merits of the policy, submitted by Talk Fracking in its response to the consultation on the draft NPPF text.

Justice Dove has allowed the parties time to consider the implications of his judgment, with a view to reaching agreement on what steps should be taken as a result of his findings.

Paragraph 209(a) of the revised NPPF as published states that mineral planning authorities should “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”.

This paragraph is the latest iteration in the English Government’s policy position on shale and gas. Its adoption was challenged by Talk Fracking on the grounds that the Secretary of State for Housing, Communities and Local Government (“SoS”) had: failed to take into account material considerations; failed to give effect to the Government’s long-established policy in relation to the obligation to reduce greenhouse gas emissions under the Climate Change Act 2008; unlawfully failed to carry out a Strategic Environmental Assessment; and failed to carry out a lawful consultation exercise in relation to the revisions to the NPPF.

In considering these grounds, the High Court decision discusses the development of shale gas and oil planning policy and the scientific/technical reports used to support that policy. Dove J refers to research commissioned by DECC on the potential greenhouse gas emissions associated with shale gas extraction and use, known as the Mackay and Stone Report (2013). The calculations in this report concluded that the carbon footprint for production and use of shale gas compared favourably to the carbon footprint of coal and was lower than the carbon footprint of imported LNG. The Mackay and Stone Report was the basis for the position that the use of shale gas would be consistent with the Government’s targets for climate change and greenhouse gas emissions.

The Mackay and Stone report was expressly referenced in a 2015 Written Ministerial Statement (“WMS”), to be taken into account in planning decisions and plan making, which set out what have been key planks in subsequent policy statements. These are: there is a clear need to explore the country’s shale and gas resources; home-grown shale resources have the potential to improve energy resilience and reduce dependency on imports; and shale gas can act as a ‘bridge’ in the transition to a low-carbon economy.

These ‘policy planks’ have been present in subsequent Government statements and documents. These include its response to the Committee on Climate Change that its tests could be met for ensuring that exploiting shale gas by fracking on a significant scale could be compatible with UK climate targets, the draft text of the revised NPPF and a 2018 WMS setting out the “national importance of shale gas development”, the “potentially substantial benefits from the safe and sustainable exploration and development of our onshore shale gas resources” and the “great weight” to be given to the benefits of mineral extraction.

Talk Fracking’s response to the NPPF consultation stated that it was inappropriate and irrational to include the 2015 WMS statements in the NPPF and to give the WMS content formal status as a material consideration in the NPPF. Particular reference was made to changes in the state of scientific knowledge about the impact of fracking on climate change since the 2015 WMS and to a 2017 report by Paul Mobbs, “How the Government has Misled Parliament and The Public on the Climate Change Impacts of Shale Oil and Gas Development in Britain”. The Talk Fracking response highlighted discussion in the Mobbs Report about methodological improvements in measuring emissions and concerns about the accuracy of the method used in the Mackay and Stone report. In addition, research subsequent to the Mackay and Stone report, including interim research from the IPPC had identified important new indices to more accurately reflect the impact of methane as a greenhouse gas, which is more significant in the short term.

Evidence submitted on behalf of the SoS set out the view that the draft policy in the revised NPPF text carried forward existing and long-established policy at a high level. It was effectively a copying across of the 2015 WMS into the NPPF. There was no intention to revisit or re-examine the merits or validity of the shale gas policy and there was therefore no purpose to be served by considering those consultation responses commenting on the merit of the policy or the evidential basis for it.

Key to the High Court’s conclusion that the consultation process was legally flawed was the text of the consultation proposals document which accompanied the draft NPPF. Dove J considered that this documentation must be read and examined in the spirit of the purpose for which it is produced. It may have been the SoS’s private intentions that the only question under consideration was whether the 2015 WMS should be copied across into the provisions of the revised NPPF, as detailed in the evidence submitted on behalf of the SoS but what was determinative was the public documentation associated with the consultation process and its context. The documentation is to be read and considered from the standpoint of a reasonable member of the public or reasonable reader.

Dove J identified nothing in the text of the NPPF consultation documents to suggest to the reasonable reader that the merits or the substance of the policy on on-shore oil and gas policy was outwith the scope of the consultation. Further, the consultation question invited “any comments on the changes in policy in [the NPPF chapter on minerals] or in any other aspects of the text of this chapter?” The Ministerial summary of responses did not describe responses on the substance or merits of the policy as irrelevant or outside of the scope of the consultation. Dove J concludes that all of this documentation presents a clear and consistent message to the reasonable reader, as a member of the public at whom the consultation was directed, that the contents and substance of the shale and oil policy were matters within the scope of the consultation and were subjects about which the SoS invited responses.

It was clear from the evidence submitted on behalf of the SoS that in contrast to the clear and consistent message of the consultation documents as to the scope of the consultation exercise, that the SoS had a closed mind on the content of the policy. Consultation was not being undertaken at a formative stage. The SoS did not “conscientiously consider the fruits of the consultation exercise” given the decision not to examine the merits of the policy. Detail on the material and evidence submitted on the merits of the policy had been excluded from the material presented to the Minister to make the decision on the final text of the NPPF. The consultation process was so flawed in its design and processes so as to be unlawful.

Closely related to the challenge to the consultation exercise was the further challenge by Talk Fracking that the scientific material in the Mobbs Report was an obviously material consideration which the SoS should have taken into account. Given Dove J’s conclusion that a reasonable member of the public would have considered that the nature and scope of the consultation included the substance and merits of the policy, the Talk Fracking material was obviously material. This material was capable of having a direct bearing on a key element of the evidence base for the proposed policy and its relationship to climate change effects. Dove J concluded that against the background of the nature and scope of the decision to be taken, as derived from the publicly available documentation, it was unlawful to leave this material out of account.

Talk Fracking’s submission in relation to the obligation to give effect to its Climate Change Act obligations failed, with Dove J concluding that the revisions to the NPPF have no impact on the Government’s obligation to meet the CCC’s tests, which remain in place and will have to be met. On individual decisions, decision-makers would be able to depart from the in-principle support for fracking if the evidence in a particular case outweighed that in-principle support. The fourth ground of challenge relating to Strategic Environmental Assessment also failed on the basis that the NPPF is not required by law and therefore not subject to the SEA process.

Given the basis upon which the Talk Fracking challenge was successful, it is anticipated that in considering appropriate steps to remedy the legal errors identified, the parties will be discussing a further process of consultation. The nature and scope of that consultation is likely to be a more contentious issue upon which to reach agreement.