The Government’s new planning guidance was unlawfully published without an assessment of its environmental impact, the High Court has been told.
Friends of the Earth argues the public should have been able to “contribute to and comment on” the updated guidance, which was published by the Ministry of Housing, Communities and Local Government (MHCLG) in July.
At a hearing in London on Tuesday, the environmental group’s barrister Richard Kimblin QC told Mr Justice Dove that the case concerned “a matter of the utmost importance for the environment of England”.
He said the National Planning Policy Framework (NPPF) “will have environmental effects which are potentially significant” and required an assessment.
Mr Kimblin added that without an assessment, “there is no consideration of whether the plan could achieve the stated aims in a better way”.
Mr Kimblin said a strategic environmental assessment (SEA) would result in “a structured and objective assessment of (the) environmental effects” of the NPPF, and would provide “an opportunity for Government and those consulted to engage with the facts of those environmental effects”.
Friends of the Earth have previously expressed concern that the NPPF makes it “virtually impossible” for local authorities to turn down proposed fracking schemes.
Mr Kimblin submitted that the NPPF was “both directive and constraining of the content of development plans”, making it “central” to planning decisions.
Talk Fracking, a campaign group whose challenge to the NPPF begins on Wednesday, further argues the Government failed to take into account scientific developments or its own climate change obligations when publishing the guidance.
But Rupert Warren QC, for MHCLG, said the NPPF did not require an assessment because the guidance did not “set the framework for future development consent of projects”.
He said that “compliance with its provisions is not a requirement that must be met if planning permission is to be granted” as the NPPF was “simply a material consideration to be taken into account”.
Mr Warren also submitted than an environmental assessment was not necessary because the updated NPPF was not “required” to be published by law.
He argued that any environmental assessment of the NPPF “would in any event necessarily be so high-level as to be impracticable or (if practicable) incapable of facilitating any meaningful analysis”.
He said it was “not apparent how a sensible assessment of the likely environmental effects” of the NPPF could be undertaken.
Mr Warren also rejected Friends of the Earth’s contention that the NPPF established a significant set of “criteria and detailed rules” for future plans.
He said it was “inevitable that a high level policy document such as the NPPF will include numerous policy aims and that those policy aims will potentially compete with one another”.
But, Mr Warren said, it was for local planning authorities to implement the framework by balancing “potentially competing policy aims”.
Before the hearing, fashion designer Dame Vivienne Westwood and her son, Talk Fracking founder Joe Corre, enacted an alternative nativity scene outside the Royal Courts of Justice.
Dame Vivienne said she was dressed as “the angel of democracy”, and was accompanied by Mr Corre as a shepherd and “three wise men”.
Mr Corre said he felt that the courts were “the last bastion that we have to try and keep politicians in check”, adding: “They just seem to bend and break all their own laws and rules that protect our democracy in order to push this (fracking) industry through.”
He said the UK was “surrounded by countries that have banned it”, adding that “the Conservative party are now isolated as the only political party that supports this industry”.
Mr Corre added: “I’m confident that we will win eventually. I don’t think this is a battle that the Government can ever win.
“They’ve turned Middle England into a bunch of hardcore activists because no one’s going accept this on their doorstep.”
Mr Justice Dove will hear arguments from Friends of the Earth, Talk Fracking and MHCLG over three days, and is expected to reserve his judgement.
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