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Lancashire councillors have every right to refuse fracking application
28th June 2015
Independent legal advice shows that Lancashire councillors can refuse Cuadrilla's application for planning permission to frack at the Preston New Road site in Lancashire - contrary to advice from the Council's officers.
A finding that the application is not in accord with the development plan and so should be refused is one which is open to the committee on the material which it has. Such a view would be a reasonable one to take and capable of being defended on appeal.
Independent Queen's Counsel legal advice shows that Lancashire's Councillors can refuse Cuadrilla's fracking application tomorrow (Monday 29th June) morning.
According to Richard Harwood QC the Lancashire planning officers' advice to councillors points out that the application will "cause demonstrable harm".
STOP PRESS - LCC REJECTS APPLICATION. FULL STORY HERE.
Thus there are grounds on which the Lancashire County Council (LCC) could "reasonably" refuse Cuadrilla's application - and defend their decision if the company appeals.
Specific grounds on which LCC councillors could refuse the application include:
- The proposal does not accord with the Fylde Borough Local Plan because drilling for oil and gas is not one of the activities permitted in rural areas;
- The fracking would breach two specific policies of Fylde Borough council;
- Noise levels will be higher than before especially at night, causing disturbance to peoples' sleep;
- Glow from lighting at night will breach relevant standards.
The LCC Development Control Committee should also consider other views beyond that of its own planning officers, says Harwood, including the objection of the District planning authority, expert advice assembled by objectors, and views submitted by local people.
Moreover, he added, "it is far from clear" that Lancashire County Council's legal adviser took account of all of this information when giving his last minute advice to councillors in secret.
'You have to give permission', say officers
Officers' unpublished advice to the Council was that it should refuse permission for the Roseacre site, and this is what councillors decided to do on Friday last week.
But they left the decision for the Preston New Road site until tomorrow, after officers advised that there were no valid grounds for refusal. The LCC also commissioned its own legal opinion, from David Manley QC, which concluded that while a refusal would be legal, it could be seen as "unreasonable" and cause financial penalties to be imposed on the Council:
"While a refusal which is not backed by substantial objective evidence cannot be described as unlawful, it nonetheless can readily be described as unreasonable in planning terms. If a refusal based on DM2 (or any other generalised policy) were to be issued, it is highly likely that the Applicant will appeal.
"In the absence of clear evidence to gainsay the views of the various consultees (noted above) and the Case Officer, there is a high risk that a costs penalty will be imposed upon the Council."
The advice concludes by warning that in the event of refusal and a consequent appeal, councillors would be required to give evidence in person, since their officers would be unable to do so for procedural reasons, and "I anticipate that it would be difficult, if not impossible, to find a reputable independent planning consultant to defend LCC's position."
Harwood insists: refusal would be reasonable!
But Harwood is equally certain that the officers' advice is deficient: "In particular there is a need to consider noise impacts in the round, in that drilling involves a continuous 24/7 industrial noise which at times will be well above other noise levels ... Were residents to have their sleep disturbed harm to health would result."
He also emphasises that "planning decisions are made by politicians rather than experts or lawyers and ... the balance of benefits and harm is ultimately a political decision. Whether a particular impact is aceptable has a large measure of political judgment to it."
And he concludes by saying: "A finding that the application is not in accord with the development plan and so should be refused is one which is open to the committee on the material which it has.
"Such a view would be a reasonable one to take and capable of being defended on appeal. Similarly it would not be 'irresponsible conduct' for the committee to decide to refuse the application."
Friends of the Earth's legal advisor, Jake White commented: "This independent QC's advice shows that the legal advice given to councillors on Wednesday was flawed. There are good reasons for the councillors to refuse this controversial planning application and democracy should ensure that their hands aren't tied by unsound legal advice.
"It is clear from this independent legal advice that councillors have the space to refuse this application and would be able to defend such a decision at appeal."
Another independent expert legal opinion has also been supplied by expert planning barrister Ashley Bowes to the Preston New Road Action Group, and concludes with the view that "a refusal based on landscape and noise impact would be rational in that it is supported by evidence before the committee".
Even if the application is allowed at appeal, he writes, there is "no serious risk" of financial penalties being applied against the Council.
Demo: from 9am tomorrow at Lancashire County Council, Preston PR1 8RL.
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