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PRESTON NEW ROAD - SHALE GAS APPLICATION

ADVICE NOTE

  1. I have been asked as a matter of utmost urgency to reduce into writing advice given over the telephone earlier today.

  2. It is my understanding that earlier today a Councillor proposed refusal of the scheme as being contrary to Policy DM2 of the LMWDF CS.   DM2 is a general policy which is broadly supportive of minerals activity so long as a range of potential impacts can be kept to acceptable levels.   I am unclear as to exactly which impacts the Councillor envisaged as being unacceptable although it was indicated that landscape/visual and amenity impacts appeared to be the concerns.

  3. In the instant case the reality is that LCC’s own Specialist Advisory Service has not objected to the proposal and categorises landscape impacts as moderate and without significant effects upon the Coastal Plain Landscape Character Type or the Fylde Landscape Character Area.  The Service notes the effects as temporary and reversible and acceptable in landscape terms.  The reporting Officer also concludes an absence of unacceptable landscape/visual impacts.  I have not seen any evidence that could credibly justify a contrary conclusion   -  on any view, impacts are highly localised, temporary and reversible.

  4. In respect of other potential amenity impacts:
  • Air Quality: Providing the EA discharge their duties property (and it must be assumed that they will) no evidence of unacceptable impacts exists and the EA do not object;
  • The EA is satisfied risks to groundwater have been properly identified and addressed through mitigation measures;
  • Mitigation proposals re noise issues mean that night-time noise levels at the nearest sensitive receptor will be a maximum of 39 dB LAeq, ie lower than measured ambient levels;
  • Lighting: The LCC advisor has raised no objection and the reporting Officer’s view is that the lighting impacts will be acceptable.

Unsurprisingly, therefore the Case Officer has concluded compliance with DM2 ibid.

5.   I am unaware of any objective evidence that can gainsay the above conclusions.  While 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.   If a refusal based on DM2 (or any other generalised policy) were to be issued, it is highly likely that the Applicant will appeal.   In the absence of clear evidence to gainsay the views of the various consultees (noted above) and the Case Officer, there is a high risk that a costs penalty will be imposed upon the Council.   There is a further point.   If a DM2 refusal is issued, the Case Officer cannot give evidence at any appeal, ie his position would be impossible.    Moreover, I anticipate that it would be difficult, if not impossible, to find a reputable independent planning consultant to defend LCC’s position.  The reality, therefore, is that a Member or Members will have to give evidence.

I so advise.

 

DAVID MANLEY QC

24th June 2015

KINGS CHAMBERS

MANCHESTER