Government fracking advice found 'unlawful'

The revision of the National Planning Policy Framework (NPPF) to add a paragraph relating to shale fracking has been confirmed as 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's 2013 shale gas report supported the view that its use would be consistent with government targets for climate change and greenhouse gas emissions under the Climate Change Act 2008. In 2017, Talk Fracking published a report criticising the science underpinning this conclusion. In 2018, the defendant published consultation proposals in relation to NPPF changes. Talk Fracking responded with a consultation providing evidence that fracking's climate impact had been underestimated. The final version of NPPF, in favour of fracking, was published in July 2018.

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 failed to take into account scientific evidence, or to give effect to the government's obligation to reduce emissions. 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 the policy's validity.

The judge was “unable to accept that a reasonable reader... would have been clear“ that the consultation was not asking for submissions regarding the paragraph. It was confirmed that the exercise breached common law requirements, and that the defendant had left out relevant material considerations. However, it was held that the challenge regarding the defendant's failure to give effect to the Climate Change Act was unarguable, as nothing in the revisions had altered the government's duty to satisfy it.

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