Cuadrilla application refused
Yesterday, in a tense meeting at County Hall in Lancashire, Councillors voted to refuse Cuadrilla planning permission for its proposed exploratory wells at Preston New Road.
The decision came as a surprise to many, after a similar vote last week was tied 7 for and 7 against. On that occasion, chair of the Development Control Committee, Cllr Munsif Dad, used his casting vote to defeat a motion to refuse.
The council’s planning experts had earlier recommended approval of the proposals and stated unequivocally that there were no sustainable reasons for refusal. This was later confirmed in written legal advice from one of Britain’s leading planning law experts, David Manley QC, who also made it clear that a refusal would likely be overturned on appeal with the risk of a substantial costs award against Lancashire County Council.
However, yesterday, unsolicited legal opinion procured by Friends of the Earth was circulated to Members of the Committee – despite attendees of the meeting being expressly told in advance that there would be no further opportunities for the circulation of written evidence.
This additional legal opinion, which contradicted that of the council’s own QC, appeared to tip the vote in favour of refusal.
Cllr Michael Green (Conservative) had abstained in the vote on Wednesday 24th June. Yesterday, he said that on the basis of evidence and associated Committee discussion he would be voting the refuse the application.
“I do not have a principled position for or against fracking”, he said. But he said the more he had looked into fracking the more concerns he had. “It has been a very difficult process. My mind has moved about on this issue from time to time throughout this process”, he said.
“I was minded to refuse last week”. But he said the advice from officers had been that a refusal would be irresponsible, unreasonable and unlawful.
“And that is why I abstained last week”, he said, “not a position I was particularly pleased to take”.
He said advice from other barristers had been that there were grounds to refuse the application that could be defended on an appeal.
Independent legal advice obtained over the weekend by the trade body UKOOG from another pre-eminent planning law expert, Nathalie Lievens QC, was not permitted to be circulated to Members at the meeting yesterday.
“This raises clear questions about the impartiality of the process,” says Lee Petts, chief executive of the Onshore Energy Services Group and managing director of Preston-based environmental consultancy Remsol that works closely with Cuadrilla. “If the advice obtained by Friends of the Earth was enough to influence Cllr Green’s views, what’s to say that the advice from Nathalie Lievens QC wouldn’t have had a materially similar effect and persuaded him, and other Committee Members, to vote in favour of the proposals?
“This raises clear questions about the impartiality of the process”
“It’s entirely plausible that the outcome of yesterday’s meeting would have been different had Members had access to all the legal advice available. Disappointingly, they were denied the opportunity to consider the legal opinion procured by UKOOG and that could mean they reached their decision in the absence of all the facts. I think that puts their decision on rocky ground.”
Pat Davies, chair of the Preston New Road Residents’ Group that opposed the plans said afterwards “the local community can breathe again”.
Meanwhile, Blackpool businessman Steve Pye told listeners on BBC Radio Lancashire that the decision sent out a clear message: “Lancashire is closed for business and closed for future investment.”
It remains to be seen what steps Cuadrilla may now take in light of yesterday’s developments, although an appeal seems likely.
Lancashire County Council’s code of conduct
According to documents published on the Lancashire County Council website (Appendix N of its Constitution) instructions are provided to Officers and Members of the Development Control Committee.
On impartiality, it states:
“Councillors must not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Councillors who do not feel that they can act in this way in general should consider whether they are best suited to serve on the Development Control Committee. Reason: The basis of the planning system is the consideration of private proposals against wider public interests. Councillors must take decisions on behalf of the community as a whole. Much is often at stake in this process and opposing views are often strongly held by those involved. Whilst Councillors should, of course, take account of those views, they must remain impartial.”
It is questionable whether the correct procedures were observed during yesterday’s Committee Meeting. The refusal to circulate independent legal opinion to Members almost certainly contravenes the Council’s rules aimed at ensuring impartiality.
The protocol also considers the additional pressure placed on Councillors who represent the electorate in the area where development is being considered, stating:
“A Member responding to heavy lobbying on a particular application in his/her Electoral Division by publicly supporting in advance of the Committee meeting a particular outcome would not necessarily be showing a prejudicial interest in terms of the County Council’s Code, but it would be proper for the Electoral Division Member to declare a personal interest and not vote at the Committee meeting. The Electoral Division Member could, however, make representations to the Committee if not voting. A member not having declared support for a particular view in advance of the Committee meeting may express that view at the meeting and vote accordingly.
Some have questioned whether Cllr Paul Hayhurst, elected representative for Fylde West – who, by his own admission, has been lobbied very heavily by opponents of the plans – should perhaps not have voted so as to avoid the suggestion of any wrongdoing or prejudicial interests in the matter.