To recap: The Planning & Development Committee was adjourned last Wednesday (24th June) after a vote to refuse Cuadrilla’s application to frack Preston New Road was seven in favour, seven against and one abstention.
Councillors had been advised that there were no grounds for turning it down and that if the Council were to refuse them Cuadrilla could appeal, resulting in costs against the council. RAFF has been informed by a reliable source that councillors were also told that if they voted against the application they could be personally liable for costs. Our research so far has not found a single case where a councillor has been found personally responsible or ordered to pay costs.
Following the result of the vote on Wednesday, councillors asked for that advice to be provided in writing. The advice was eventually provided to the councillors and the public However Councillor Paul Hayhurst declared that the written advice was different in tone from the advice they had received from the and it was agreed that the council would adjourn to allow both the council and residents to seek legal advice, and meet again on Monday 29 June.
Meanwhile, Preston New Road Action Group sought the advice of two barristers specialising in planning law to comment on the Council’s legal advice. A spokesperson from the Preston New Road group, said: “The latest advice from two barristers confirms the view that the committee would have valid reasons for refusal on noise and landscape grounds, and that risk of costs would be small if it went to appeal.”
Dr Ashley Bowes, a specialist planning barrister has reviewed the advice given to the planning committee – you can download it here.
The excellent web site Drill or Drop has summed up his advice. It says:
Dr Bowes said Mr Manley’s advice did not reflect the full picture of evidence before the committee or the full extent of members’ duties and powers.
He said applications which did not comply with the development plan should be refused unless there were good reasons not to. In Lancashire, the development plan comprises the Lancashire Waste and Minerals Plan and the Fylde Local Plan.
Dr Bowes said it was up to councillors to decide if an application complied with the development plan or whether there were any issues that outweighed this.
“In particular”, he said, “members are entitled to depart from their officer’s advice provided there is a rational and discernible basis for doing so”.
Dr Bowes said there was evidence that the Preston New Road scheme, if approved, would result in “demonstrable harm”, in particular from its impact on the landscape and visual amenity. The committee may decide, he said, that this puts it in breach of policies EP11 of the Fylde Local Plan and DM2 of the Lancashire Waste and Minerals Plan and that the harm is not outweighed by the temporary (six year) timescale of the scheme.
A report to the committee by noise consultants for PNRAG concluded that there would be unacceptable noise from the site. The consultants said proposed conditions were not appropriate to mitigate the harm. This could also put the scheme in breach of policy DM2, Dr Bowes said.
On Wednesday, the committee voted on a motion to refuse the application, using these and other policies as a reason. The vote was tied seven-all with one abstention. The chairman used his casting vote to defeat the motion.
Dr Bowes said if the committee refused the application Cuadrilla was entitled to appeal. The usual rule was that the council and the company would bear their own costs, regardless of the outcome of the appeal, he said. The exception is where the planning authority has acted unreasonably by not substantiating its reasons for refusal.
He said the impact of the fracking site on the landscape and the unacceptable noise “would be wholly defensible at appeal on the evidence before the committee”.
“Provided the eventual reasons are supported by evidence at appeal there is no serious risk of costs even if the appeal is allowed”.
There are important reasons contained in this advice for turning down the application but Lancashire County Council have now said that the Preston New Road residents will NOT be allowed to submit their barrister’s legal advice either verbally or in a written format. This is outrageous. It was stated clearly by both the proposer and seconder of the adjournment that the deferral would provide the Preston New Road group with the opportunity to seek their own legal advice.
The democratic process is being misused in favour of Cuadrilla and a planning officer who continually shows his desperation for this application to be approved.