UKOOG respond's to legal advice in Preston New Road application
28 June 2015
UKOOG, the representative body of the onshore oil and gas industry note the unequivocal legal advice given to Lancashire County Council Development Committee last Wednesday with respect to Preston New Road exploration planning application.
In the advice David Manley QC notes “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.”
David Manley QC who was called to the bar in 1981, provided this advice to Lancashire County Council and is one of the UK’s leading legal planning practitioners who has over 30 years’ experience in this field.
We note that a number of councillors at the meeting on Wednesday asked for a delay in making a decision to allow for further legal opinions to be made available.
A further legal opinion has become available from Dr Ashley Bowes called to the bar in 2013. This advice provided to certain residents has not so far been presented formally to the committee as quite rightly it is not advice to the committee, but this advice has been advertised. We understand that Dr Bowes presented to the committee at pre meetings. His advice runs contrary to that of David Manley QC.
UKOOG having considered all of the advice asked another of the UK’s leading planning lawyers Nathalie QC for her opinion on both the advice of David Manley QC and Ashley Bowes.
Nathalie, called to the bar in 1989, has represented the Secretary of State for Communities and Local Government on a number of planning cases, has represented local authorities against HS2, has represented local authorities against the expansion of Heathrow airport and has acted for EDF Energy in relation to the challenge to the grant of planning consent for Point C nuclear power station.
Nathalie’s advice to UKOOG is as follows:
"Where Members depart from the recommendation of officers they must do so reasonably and on the basis of robust evidence.
“Ashley Bowes does not provide reasons why a refusal and departure from the officer's recommendation would be reasonable. While he asserts that refusal could occur on landscape and/or noise grounds, he does not refer to evidence to justify this position.
“Noise is a highly technical issue where there is little scope for judgment. It is not open to the Council to say it does not accept the evidence of Arup or Jacobs in respect of noise, unless robust evidence can be provided to the contrary. In this case, Jacobs, the Council's own noise consultant, has concluded noise impacts are acceptable and both Arup and Jacobs have responded to the contentions raised by MAS.Because noise is a technical matter with so little scope for interpretation it is one of the more common matters which give rise to an award of costs against a Council.
“On the matter of landscape impact, while the weight to be assigned to the impact is a matter for the decision maker, the Council must still act reasonably in assigning the weight. The officer's report makes it clear that impacts will be temporary, localised and reversible. The temporary nature of the impact will be an overwhelming factor in an appeal scenario and the risk of costs to Council and therefore the Lancashire taxpayer would be high in view of this."
Ken Cronin CEO, UKOOG commented “This process has taken 15 months and I have every sympathy with local councillors and officials at the amount of time and effort that has got us to this point. The overwhelming legal advice from two of the UK’s leading QCs is very clear that the applicant has provided evidence in line with planning regulation and guidance and that evidence has been accepted by a planning officer as being appropriate to provide the council with a positive recommendation. As I stated last week when speaking to the Development Committee now is the time for the committee to see what is before them - a project that is governed by strict regulations put there to protect the public with huge benefits for Lancashire.”
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Deborah Saw/Jason Nisse
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