Legal challenge to government fracking policy

by Paul Andrews

Legal challenge to government fracking policy

by Paul Andrews
Paul Andrews
I’m challenging a Written Ministerial Statement, which radically changes how fracking will be dealt with by planning authorities and prevents local councillors from representing their communities.
Funded
on 12th August 2018
£24,221
pledged by 638 people
Paul Andrews
I’m challenging a Written Ministerial Statement, which radically changes how fracking will be dealt with by planning authorities and prevents local councillors from representing their communities.

Latest: Nov. 10, 2018

Our day in court - Local councils free to decide on fracking rules, says Judge

We finally had our day in court on Monday 5th November, when this case was heard at the Royal Courts of Justice in London by Mr Justice Holgate, one of the country’s leading planning experts....

Read more

What is this case about?

On 17th May 2018 Greg Clark, Secretary of State for Business, Energy and Industrial Strategy, published a Written Ministerial Statement outlining the government’s current strategy on fracking. This statement seeks to impose an unacceptable level of government control on local planning applications and will significantly reduce the ability of democratically elected local councils to establish their own parameters for fracking in their area. I believe this is both undemocratic and illegal, and I am therefore seeking to challenge this Ministerial Statement in court through a Judicial Review.

How will my donation help?

In order to challenge the government’s fracking policy in court, I need to raise £22,000 for legal fees, expert witness testimony, court representation and other unavoidable costs. I am therefore asking everyone who values local democracy and opposes fracking to make a donation to this appeal. Also please share this page with your friends, family and colleagues by email and on social media, so that other people can help me fight this assault on our democratic system.

What happens if you win?

If I win the Judicial Review, the Written Ministerial Statement will have to be withdrawn, and the government will be forced to reconsider their approach to fracking and planning regulation in England. This would be a very serious blow to the government’s pro-fracking policy, and would strengthen local democracy by placing fracking planning decisions back in the hands of locally elected councils and their planning authorities.

Why should this matter to me?

Large areas of the UK have already been licensed for fracking, and you may already live in one of these so-called Petroleum Exploration and Development Licence (PEDL) areas. (You can find out if your home is in a PEDL area by clicking here.) Fracking has been banned in many countries and states due to health and environmental concerns, and many other places have moratoria (i.e. temporary bans) in place. Currently England is the only country in the UK where fracking is allowed, as Scotland, Wales and Northern Ireland have de-facto bans or moratoria preventing this industry from drilling in their countryside. 

So what's the problem with fracking?

Recent peer-reviewed research papers have shown that fracking can cause serious health problems for people who live near well-sites, including premature births, miscarriages, birth defects, childhood asthma, migraines and other illnesses. People who live near fracking well sites also have to cope with higher levels of noise, light and air pollution, large numbers of HGV movements on rural roads, increased risk of earthquakes (particularly in areas where there has been coal mining in the past), possible contamination of local water supplies and other environmental problems. Property prices near fracking wells may fall and people might find their homes more difficult to sell. Burning fracked gas and methane leaks will increase climate change at a time when we should be moving rapidly towards a low-carbon economy based on clean renewable energy. Fracked gas will also be used to make single-use plastic products, which are causing a global pollution crisis in our oceans and rivers.

Widespread fracking would also result in the industrialisation of our countryside because of the large number of wells required to produce meaningful amounts of gas. A recent report from Cardiff University states that 6,100 wells across 1,000 pads would need to be drilled just to produce half the gas we currently import – or to put it another way, one well would have to be drilled and fracked every single day for 15 years!

What do local communities think?

Fracking has been vigorously opposed by local communities up and down the country wherever a planning application has been made. And despite years of industry lobbying and government spin, there is still no social licence for fracking in the UK, with only 18% supporting the controversial practice. Under pressure from the oil and gas industry, the government has now abandoned their attempts to convince unwilling communities to accept fracking, and are now planning to bypass local democracy and impose fracking through central government decree. The Written Ministerial Statement is a key part of their strategy, and if left unchallenged will mean that local authorities will be unable to represent their communities or set limits to control the fracking industry in their area.

I am simply not prepared to let that happen, and I hope you aren’t too. Please join me in fighting the threat of fracking and standing up for local democracy by making a donation at the top of the page. 

For a chilling example of the impact this Ministerial Statement is already having on planning law and local democracy, please read the story of the Yorkshire Plan below the photo.




LOBBYING, LOCAL DEMOCRACY SUBVERTED – THE STORY OF THE NORTH YORKSHIRE PLAN

Who decides where – or if – fracking can take place? Where I live in Yorkshire, this is in the hands of the North Yorkshire County Council (NYCC) Planning Authority. Their decisions are guided in part by document called the Minerals and Waste Joint Plan (let’s just call it ‘The Plan’ for short). This important document is drawn up by the NYCC, York City Council and the North York Moors National Park Authority. (At this point, it’s worth noting that every other county council in the country has their own version of The Plan.)

The North Yorkshire Plan was recently revised, a process that took nearly five years and involved numerous drafts and public consultations. The new version of The Plan has a separate section on fracking, and is an attempt to find a compromise between the interests of the oil and gas industry and the concerns of local residents, businesses, parish councils, farmers, landowners and the tourist industry. The Plan includes clauses that would establish modest restrictions on the fracking industry intended to prevent the industrialisation of the countryside in one of the most popular tourist destinations in the UK.

One of these conditions is a requirement to establish a 500m buffer zone between fracking well sites and the nearest home, school or other building. Another is that The Plan considers any drilling operation into shale rock to produce gas as ‘fracking’, while the industry argue that it is only fracking if more than 1,000 m3 of fluid is used (which is how the government arbitrarily defined fracking in the Infrastructure Act 2015). 

On April 13th a government-appointed planning inspector gave her provisional backing to The Plan, including the buffer zone and the councils’ definition of fracking. This enraged the oil and gas industry, who claimed that a 500m buffer zone would sterilise the exploitation of shale gas and that they would be taking immediate steps to get the inspector's findings quashed. 

Five weeks later, Greg Clark issued his Written Ministerial Statement outlining the government’s agenda for fracking in England. There are many issues of concern in this statement, but one section appears to be specifically dedicated to overturning The North Yorkshire Plan, saying ‘Plans should not set restrictions or thresholds across the plan area that limit shale gas development without proper justification’ and that planning authorities should also recognise the government’s definition of fracking as stated in the Infrastructure Act. The Statement also said that ‘policies should avoid undue sterilisation of mineral resources (including shale gas).’ Coincidence? I don't think so

I believe the Written Ministerial Statement was a desperate attempt by central government to override the modest restrictions on fracking included in The North Yorkshire Plan, and is likely to have been the result of frantic lobbying by the oil and gas industry in the days after the approval of The Plan. It appears that the carefully considered decisions by locally elected councillors, who have spent years drawing up The Plan in consultation with local communities, count for nothing in the face of the ever-increasing demands of the oil and gas industry. So much for being a champion of localism, Mr Clark!

This controversy raises issues of profound constitutional importance. It is clearly in the public interest that all ministerial policy decisions which affect property or rights of residents should go through an appropriate form of due process before they are acted upon. It is also a legal requirement that any directives that have environmental significance should first be subject to a Strategic Environmental Assessment Directive, which did not happen in this case. I am therefore challenging this Ministerial Statement in a Judicial Review.

If you care about protecting local democracy and are concerned about the unrestricted industrialisation of our countryside as envisaged by the fracking industry, please support my legal challenge by making a donation at the top of the page. 

Thank you for reading about my case and for helping to protect our countryside and local democracy. Please pass this appeal on to your friends and family too.

Paul Andrews

This is a photo of the KM8 fracking well site that is near my home. If you don't want one of these a few hundred metres from where  you live, please support my legal challenge today.




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Update 4

Paul Andrews

Nov. 10, 2018

Our day in court - Local councils free to decide on fracking rules, says Judge

We finally had our day in court on Monday 5th November, when this case was heard at the Royal Courts of Justice in London by Mr Justice Holgate, one of the country’s leading planning experts. As you will know, this was a permission hearing, in which we were asking for the judge to allow us a full Judicial Review to challenge the government’s Written Ministerial Statement (WMS) on fracking policy of May 2018.

Before the hearing commenced, the defendants – i.e. the government – had stated in their pleadings that the requirement to "recognise" the Infrastructure Act definition of fracking (which was one of the main reasons this case was brought) did not require planning authorities to "apply" it, and that the MWS simply re-stated previous policy. The hearing took place against the background of this significant concession.

Unfortunately the judge refused permission for us to proceed to a full Judicial Review, which was not what we had hoped or expected. However, the defendants were forced to concede that the MWS did not change any previous guidance that had been issued and the judge declared that local planning authorities did not have to follow ministerial guidance when making local plans, provided they had good reason not to do so.

Paul Andrews said after the hearing, “While we are disappointed that the judge did not allow us to proceed with the Judicial Review, we are delighted that he has stated that local authorities could disregard government planning guidance on issues such as the definition of fracking provided there was sufficient justification. This should allow The North Yorkshire Waste and Minerals Plan, which was developed over a number of years by our elected representatives in collaboration with local residents and the oil and gas industry, to be approved as it stands.”

The Plan contains modest restrictions on the development of this controversial industry, which has already caused numerous small earthquakes at Cuadrilla’s Preston New Road site, the only active fracking site in the country. These restrictions include a minimum setback distance of 500m between fracking well-sites and people’s homes, a limit on how many well-pads are allowed in a licence area, and defines fracking as any drilling that is intended to produce gas from shale rock. This is a broader definition than the Infrastructure Act definition favoured by the fracking industry, which asserts that such work can only be defined as 'fracking' if it uses over 1,000 m3 of liquid for each stage, or a total amount of 10,000 m3 of fluid in total.

This ruling also sends a message to the government that they cannot set national and local fracking policy by ministerial edict, and the government’s latest attempts to override democratically elected local councils and fast-track fracking against the wishes of communities are doomed to failure.

Finally, we would like to thank each and every one of the 638 people who donated to our crowdjustice page for your extremely generous financial support in helping us to bring this important case to the courts. We simply could not have achieved this significant gain without your help. This ruling brings us one step closer to preventing fracking from industrialising our countryside and driving climate change, and we consider this judgement, and the pre-trial concession made by the government, a victory, not a defeat.

For the record, here is a short summary of the judgement from our barrister, Marc Willers QC:

Mr Justice Holgate concluded that there was no need for a Strategic Environmental Assessment (SEA) of the 2018 WMS and he dismissed our application for permission to judicial review the WMS.

The Judge’s reasons for reaching that conclusion were essentially as follows: he found that the reference in the 2018 Written Ministerial Statement (WMS) to an expectation that Mineral Planning Authorities ‘recognise’ the fact that Parliament has defined fracking in legislation (section 4B Petroleum Act 1998) was no more than that.

He made the point that once Mineral Planning Authorities (MPAs) had noted the existence of that definition, they were perfectly entitled to apply the wider definition contained in paragraph 129 of Planning Practice Guidance - provided of course that they explain their reasons for so doing (as the Joint Authorities in North Yorks have done).

That being so, it seems that the North Yorkshire Minerals and Waste Joint Plan’s adoption of the PPG definition ought to be safe from challenge by UKOOG (though the industry might still try and mount such a challenge) and that the National Park/Area of Outstanding Natural Beauty in North Yorkshire will be protected.

Hopefully, other MPAs will also take heart from the judgment and ‘recognise’, but not adopt, the statutory definition.

Marc Willers QC, Garden Court Chambers

Finally, we would also like to thank the wonderful people at crowdjustice for their help and advice in running this fundraising campaign, and for answering all our queries clearly and promptly. This organisation offers a service that is an essential resource for the public in these difficult times, and we urge people to stay on their email list and support other vital cases on the Crowdjustice website that aim to protect the environment, human rights and other important causes.

Paul Andrews

Update 3

Paul Andrews

Oct. 18, 2018

Permission Hearing date set - Please help us reach our goal!

JR PERMISSION HEARING SET FOR NOVEMBER 5th     

Firstly, I’d like to thank each and every one of you for supporting my campaign. I have been overwhelmed with the response, which shows how many people feel as strongly as I do that the government’s plans to override public opposition and impose new planning rules by decree must be challenged.     

Last week we learned the date of our so-called ‘permission hearing’, which will be on Monday November 5th at the High Court in London. As you’ll see, we still haven't reached our stage one target of £23,500, which is the total amount needed for us to proceed with the permission hearing. Please can you help us by making a small donation, and by sharing this appeal with your friends and family. 

As you may know, a Judicial Review is a two-stage process. First you need to apply to the court for permission to go to Judicial Review, then if it is granted, the Judicial Review itself follows a few months later. Normally a judge makes a decision on permission based on the parties’ written submissions without a hearing, but because of the exceptional nature of this case, the judge has ordered an oral hearing. At this hearing, the judge will consider whether we have sufficient grounds to proceed to a full Judicial Review and will decide whether the effect of the Government’s fracking policy should be suspended pending the outcome of the Judicial Review. If the judge finds in our favour, the Judicial Review itself will follow on, probably early next year.     

If we are granted a Judicial Review, we will need to raise an additional £20,000 to fund the legal costs for stage two. Of course, we will let our supporters know what happened as soon as we hear news of the judge’s decision.     

With fracking having already started at Preston New Road in Lancashire, the stakes couldn’t be higher. Despite massive public opposition, the government continues to promote fracking at the expense of clean renewable energy, and seems determined to force this unwanted, unsafe and unnecessary industry on local communities by any means necessary - including removing planning permission requirements for exploratory well-sites. Thank you again for helping me to challenge the government's pro-fracking policy and stand up for local democracy.     

Thank you again for your support, and we'll be in touch again soon.      

Paul 

Update 2

Paul Andrews

Aug. 30, 2018

Second fundraising target achieved!

I am delighted to share the news that we have just hit our second funding target of £15,000, thanks to the combined donations from nearly five hundred people - including you, of course! 

I am heartened to find that so many people are as concerned as I am about the impact the government's pro-fracking proposals would have on local democracy and our wonderful countryside. The Written Ministerial Statement that I am challenging would transfer control over fracking planning application from democratically elected local councils to central government. This simply cannot be allowed to happen. 

We have now moved on to the third stage of fundraising, and require an additional £7,000 to pay for legal fees, court fees, expert witness statements and other unavoidable costs to complete the first stage of the legal action. To achieve this, we need your help. Please share this appeal by email and on Facebook and Twitter, asking your friends and family to chip in. Simply cut and paste this text below and share with your contacts:

EMAIL: I recently supported an urgent appeal to raise money for a legal challenge to the government's fracking policy. The government are trying to take fracking decisions out of the hands of local communities and their democratically elected councils and impose fracking on people through central government decree. To find out more, and to donate, please click here: https://www.crowdjustice.com/case/frackingchallenge/

FACEBOOK: Please join me in supporting this urgent appeal to raise money for a legal challenge to the government's fracking policy, which will take decisions out of the hands of local communities and councils. To find out more, and to donate, please click here: https://www.crowdjustice.com/case/frackingchallenge/

TWITTER: If you think decisions on #fracking should be made by local communities and councils, please support this #JudicialReview appeal. Click here for more and how to donate: http://bit.ly/FrackingChallenge #frackingchallenge

Thank you again for all your support. Together we can protect local democracy and beat fracking - but we can only do it if we work together. 

Paul 

Update 1

Paul Andrews

Aug. 17, 2018

First target hit and papers filed ... but we still need your help.

Dear supporters

Firstly, I'd like to say a huge thank you to everyone who has already donated to my appeal for funding of this Judicial Review. I have been overwhelmed with the positive and generous response from the public, who clearly share my anger at the government's attempts to ride roughshod over local democracy and force fracking on unwilling communities by decree.

I was delighted to hit my first target of £6,000 last weekend, which allowed my legal team to move ahead and file the legal papers against the government last Wednesday. Put simply, this type of legal case is in two parts. Firstly, I need to file for permission to bring a Judicial Review against the government, and if successful, this is followed by the Judicial Review itself. So, the first part of this process has started - and all thanks to you and your fellow supporters. 

As for this crowdjustice funding appeal, it's very important that we keep raising funds to cover costs for the legal work that needs to be done, and are now fundraising for our 'stretch target' of £15,000.  

To achieve this, we need your help. Please share this appeal by email and on Facebook and Twitter, asking your friends and family to chip in. To make this easier, you can simply cut and paste this text below and share with your contacts:

Email: I recently supported an urgent appeal to raise money for a legal challenge to the government's fracking policy. The government are trying to take fracking decisions out of the hands of local communities and their democratically elected councils and impose fracking on people through central government decree. To find out more, and to donate, please click here: https://www.crowdjustice.com/case/frackingchallenge/

Facebook: Please join me in supporting this urgent appeal to raise money for a legal challenge to the government's fracking policy, which will take decisions out of the hands of local communities and councils To find out more, and to donate, please click here: https://www.crowdjustice.com/case/frackingchallenge/

Twitter: If you think decisions on #fracking should be made by local communities and councils, please support this #JudicialReview appeal. Click here for more and how to donate: http://bit.ly/FrackingChallenge #frackingchallenge 

Thank you again for all your support. I simply could not do this without you.

Paul.

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