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Fracking approved in Lancashire: What happens next?


Communities secretary Sajid Javid has today overturned Lancashire County Council’s decision to deny a planning application for the Little Plumpton fracking site, allowing shale company Cuadrilla to commence drilling next year.

This landmark decision will result in a major increase in the scale of exploratory fracking in the UK, as it approves four wells, compared to the single well approved for fracking in North Yorkshire earlier this year. It means that for the first time, shale rock will be fracked horizontally in the UK, which is expected to release more shale gas.

In his announcement, Javid said that “Shale gas has the potential to power economic growth, support 64,000 jobs, and provide a new domestic energy source, making us less reliant on imports”.

Lee Petts, spokesperson for “Lancashire for Shale”, said the decision was “excellent news for Lancashire’s businesses and our future prosperity”.

However the shale industry is not without its critics, and many anti-fracking campaigners have expressed their disappointment with the outcome of the appeal. Greenpeace representative Hannah Martin said: “Digging up more fossil fuels that we can’t burn if we are to honour the international agreement we signed in Paris, and is coming into force next month, makes little economic or environmental sense.”

It appears that the only recourse left open to those opposing fracking in Lancashire would be to apply for a judicial review of the decision. Judicial review is the procedure by which a Court can review an administrative action by a public body, though there are limited grounds upon which a claim can succeed, and any claimant must be able to prove the decision falls foul of one of three grounds:

  1. Illegality: this would require the claimant to show that the decision maker has exercised its powers wrongly or has misdirected itself in law.
  1. Irrationality: a decision may be challenged if it is so unreasonable that no reasonable decision maker could ever have come to it, or the decision maker has been mistaken of fact or failed to consider relevant matters when reaching its decision.
  1. Procedural unfairness: a successful challenge on this ground would require a claimant to establish that the decision maker has not properly exercised the relevant statutory procedures, such as a failure to consult or give reasons where required. Alternatively, there may have been a failure to observe the principles of natural justice in the decision making process.

In essence, all of the grounds would require some wrong doing on the part of Mr Javid to be established if they are to be successful.  As well as being notoriously difficult claims to succeed in, Judicial Review matters are also expensive and protracted. In addition, there are strict time limits that must be adhered to, with claims needing to be brought as soon as possible, and no later than the date three months after the decision that is to be challenged. The court’s permission is also required before proceedings can be commenced.

It is unclear whether any anti-fracking parties intend to apply for a judicial review of the decision at this stage. Cuadrilla has indicated that the fracking may begin at the Preston New Road site as early as April 2017.

Katie Kozlowska is head of the energy and utilities solicitors team at Harrison Drury in Preston. If you have any questions or concerns about energy law, please email Katie or call on 01772 258321. We also have lawyers in Kendal, Lancaster, Garstang and Clitheroe.

Want to know more about how we can help businesses and individuals in the energy sector? Visit our Energy & Utilities page.

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