INEOS UPSTREAM LIMITED AND ANOTHER, PETITION OF AND FRIENDS OF THE EARTH SCOTLAND AGAINST THE LORD ADVOCATE [2018] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> INEOS UPSTREAM LIMITED AND ANOTHER, PETITION OF AND FRIENDS OF THE EARTH SCOTLAND AGAINST THE LORD ADVOCATE [2018] ScotCS CSOH_66 (19 June 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_66.html Cite as: [2018] ScotCS CSOH_66, [2018] JPL 1211, 2018 GWD 22-270, [2018] CSOH 66, 2018 SLT 775

Petitioners: Moynihan QC, McBrearty QC; Burnet; DLA Piper Scotland LLP

Respondent: Mure QC, A Sutherland; Scottish Government Legal Directorate

[1] In this petition, which came before me for a substantive hearing, Ineos Upstream

Limited and Reach Coal Seam Gas Limited seek judicial review of certain acts and decisions

of the Scottish Government in relation to unconventional oil and gas (“UOG”) in Scotland.

The basis of the petitioners’ case is that in 2017 the Scottish Government unlawfully imposed

an indefinite ban on the method of oil and gas extraction known as hydraulic fracturing or

“fracking”. The Lord Advocate maintains that, on a correct understanding of its acts and

decisions, the Scottish Government did not impose any such ban. He contends that since

there is no ban the petitioners have no case; the petition for judicial review is based on a

series of fundamental misunderstandings of the Scottish Government’s position and should

[2] To set the scene I will briefly explain what is involved in the process known as

hydraulic fracturing or fracking. Fracking is a drilling technique used to fracture rocks in

order to release the oil and gas contained in those rocks. It is most frequently employed to

extract oil and gas from shale. Shale deposits are mainly found at depths greater than

1 kilometre; in Scotland they are usually located at depths of between 1 and 3 kilometres.

There are a number of shale deposits in Scotland, most notably across an area of the Central

Belt known as the Midland Valley. In 2014 the British Geological Survey published an

analysis of the potential shale resources in the United Kingdom. They estimated that the

Midland Valley holds between 49.4 and 134.6 trillion cubic feet of shale gas. Only a

relatively small proportion of these resources are likely to be commercially viable for

development or production. Exploratory work would be required so as to understand more

fully how much oil and gas could be economically and technically recovered.

[3] The oil and gas industry use a range of techniques to extract oil and gas from

underground reserves. What are referred to as conventional oil and gas reserves can be

exploited by drilling a well, allowing the oil or gas to flow out under its own pressure.

Conventional deposits of oil and gas are contained in porous rocks with interconnected

spaces, such as limestone and sandstone. These interconnected spaces give rise to

permeability which allows the oil or gas to flow effectively through the reservoir to the well.

[4] By contrast, unconventional oil and gas deposits are contained in impermeable rocks,

such as shale or coal deposits. In these cases, the oil or gas cannot easily flow through the

reservoir. In order to extract such oil and gases, techniques such as hydraulic fracturing are

used. As I have explained, fracking is used to fracture rocks to release the oil and gas

contained in them. The rock is fractured by injecting pressurised fluids into the rock to prise

[5] Water is injected into the shale at high pressure to create, or enlarge, existing tiny

fractures in the rock; these may only be a few fractions of a millimetre in width. The

injected water contains proportions of sand (around 5%) to help hold open the fractures.

Chemicals are also used (less than 1%) to reduce friction and protect the drilling equipment

from corrosion, and to remove accumulations of micro-organisms and mud from the drilling

[6] Coal bed methane is also considered to be an unconventional source of gas. This is

because the gas is present in the coal rather than being held in pore spaces. To extract the

gas, water is drained from the coal seam to release pressure; this is known as de-watering.

Depending on local geological conditions, this may be carried out with or without hydraulic

[7] The future of unconventional oil and gas in Scotland has proved to be a highly

controversial subject. It has given rise to intense debate. Views for and against it are

strongly held on all sides of the debate. In this case the court is not at all concerned with

these questions; they raise sensitive issues of environmental, economic, and social policy.

The court is concerned only with the legal question of whether, as the petitioners allege, the

Scottish Government has acted in excess of the powers conferred on it by imposing an

outright ban on fracking. In a written intervention Friends of the Earth Scotland submitted

that the Scottish Government had acted lawfully in imposing a ban on UOG development in

Scotland. The intervention was prepared on the basis that an effective ban had been put in

place. As I have explained, the position of the Scottish Government is that no effective ban

has been imposed. The intervention did not seek to engage with that issue, which is the real

issue in the present case. In the circumstances, I need say no more about the intervention.

[8] In the United Kingdom the right to search, bore for and extract petroleum, including

oil and gas, is vested in the Crown. Petroleum exploration and development licences

(“PEDLs”) may be granted, at ministers’ discretion, under the Petroleum Act 1998 (“the

1998 Act”). On 9 February 2018, pursuant to sections 47 and 48 of the Scotland Act 2016,

responsibility for onshore petroleum licensing within the Scottish onshore area was

devolved to the Scottish Ministers. A licence is granted to promote the exploitation of a

national resource in the national interest. Consequently, it imposes positive obligations on

the operator to progress work; operators are not entitled to ‘bank’ licenses as assets and to

fail to make progress. On the other hand, in view of the scale of investment the government

[9] It is important to appreciate that a PEDL does not give permission for operations; it

merely grants exclusivity to licensees in relation to hydrocarbon exploration and extraction

within a defined area. At each stage, the license holder will have to obtain not only a

ministerial consent required under the terms and conditions of the PEDL, but also

permissions and regulatory consents from land owners and a range of public authorities,

including the Scottish Environmental Protection Agency (“SEPA”), the Health and Safety

Executive (“HSE”), the Coal Authority, Scottish Natural Heritage (“SNH”), and local

planning authorities. None of these consents and permissions is provided for in, or

guaranteed by, the grant of a PEDL. A PEDL grants exclusive rights in relation to the

exploration and development of all types of conventional and unconventional oil and gas

including tight gas, coalbed methane, mine vent gas, oil shale and shale gas. In order to

carry out UOG extraction in Scotland, in addition to a PEDL, the petitioners would require

to obtain inter alia planning permission under the regime in the Town and Country Planning

(Scotland) Act 1997 as amended (“the 1997 Act”) and related legislation, and authorisation

by SEPA under the Water Environment (Controlled Activities) (Scotland) Regulations 2011

[10] In the recent case of R (Dean) v Secretary of State for Business, Energy and Industrial

Strategy [2017] 4 WLR 158 Holgate J discussed the nature of PEDLs and the applicable

statutory and regulatory frameworks. He drew attention to a number of features of the

licensing regime. For present purposes, it is of interest to note the following:

1. The activities licensed by a PEDL are intrinsically risky. The risks include

completely unforeseen and sometimes unforeseeable changes in circumstances.

2. Although they are “statutory licenses”, PEDLs are contractual in nature, the

3. Following the grant of a PEDL, the licensee is subject to a comprehensive system

of regulation under other legislation to address potential environmental and

safety issues. Obtaining consent under the license to proceed is subject to those

4. PEDLs are highly prospective, with no guarantee of commercial viability.

5. License holders are required to pay an escalating annual rental to the

government, designed to ensure that once a license is awarded, work proceeds in

a manner most likely to establish whether a viable oil or gas field exists and can

6. Variations to the terms of PEDLs, including the extension of the terms, are

considered by the licensing authority in the light of all relevant factors.

7. A PEDL is essential for a licensee not only to be able to search for and extract oil

and gas, but also to obtain the right to own the product so as to be able to sell it to

third parties. These are private law rights which are essential to an operator for

the conduct of its business. The grant of a license is essentially a property

[11] The first petitioners hold interests in and are the operators of PEDLs 133 and 162,

which cover defined onshore areas in Scotland. They hold 100% of the interest in PEDL 133,

and 80% of the interest in PEDL 162. The second petitioners own the remaining 20% of

PEDL 162. The petitioners aver that the second petitioners are a Scottish company which

(either itself or through associated companies) has been involved in UOG development since

about 2007; its term as licensee under PEDL 162 commenced on 1 July 2008. The first

petitioners initially acquired interests in PEDLs 133 and 162 in 2014. They also acquired the

interest in planning applications submitted for a site at Letham Moss, a small former mining

village near Falkirk, and at Powdrake Road, near Airth, Plean, in respect of coal bed

methane production; the relative sites are in the area covered by PEDL 133. The Scottish

Ministers appointed reporters to determine these planning applications in June 2013; there

was a three-week public inquiry in March and April 2014. No determination has yet been

issued. The petitioners aver that they have both made multi-million-pound investments in

[12] It will now assist if I summarise the main features of the relevant planning

framework, including consideration of (i) the applicable rules, policies, and practices of the

Scottish planning system, and (ii) the policy framework in place in 2014.

[13] As is well-known, Scotland has a plan-led system for land use (City of Edinburgh

Council v Secretary of State for Scotland 1998 SC (HL) 33 per Lord Hope of Craighead

at 35G-36G; and Lord Clyde at 42G-45B). Section 37(2) of the 1997 Act provides inter alia

“In dealing with … an application (sc. for planning permission) the authority shall

have regard to the provisions of the development plan, so far as material to the

[14] This applies equally where the determination is to be made by the Scottish Ministers

on a called-in application under section 46 of the 1997 Act. The ministers’ discretion in

respect of planning applications is a broad one; the exercise of weighing up the material

considerations and the development plan is a matter of planning judgment for the decision

maker. The weight to be attached to a relevant consideration is also entirely for the decision

maker, provided that he or she does not act unreasonably in a Wednesbury sense.

[15] In terms of section 25 of the 1997 Act, where in making any determination under the

1997 Act regard is to be had to the development plan, the determination is to be made in

accordance with the development plan unless material considerations indicate otherwise. It

may be said that in this sense a degree of priority is afforded to the development plan. It is

not, however, the law that greater weight is to be attached to the policies of the development

plan than to other considerations; other policy may overtake and supersede development

plan policies (see R (West Berkshire DC) v Secretary of State for Communities and Local

Government [2016] PTSR 982 per Laws and Treacy LJJ at paragraph 20).

[16] In terms of section 3A of the 1997 Act, Scottish Ministers are obliged to prepare,

publish, and keep under review a spatial plan for Scotland known as the National Planning

Framework (“NPF”). The current NPF (“NPF3”) was published in June 2014. It represents

the Scottish Government’s spatial expression of its economic strategy and plans for

development and investment in infrastructure. In particular, it sets out the Scottish

Government’s vision for achieving (i) a successful, sustainable place, (ii) a low carbon place,

(iii) a natural, resilient place and (iv) a connected place (NPF3 paragraph 1.2).

[17] In terms of sections 8(1) and 16(2) of the 1997 Act, when preparing strategic

development plans and local development plans, the relevant authorities are to “take into

account the National Planning Framework”, along with any information and considerations

prescribed for that purpose, and such other information and considerations as appear to

them to be relevant. NPF3 is not itself part of the development plan and applications do not

have to be determined in accordance with its terms. It is, however, a material consideration

[18] In June 2014, the Scottish Government published Scottish Planning Policy 2014

(“SPP2014”). SPP2014 is part of the Scottish Government’s national planning policy. It is a

material consideration in the determination of applications for planning permission. It sits

alongside NPF3 with other non-statutory planning policy documents including (i) Creating

Places (2013), (ii) Designing Streets (2010) and (iii) various planning circulars. It sets out the

Scottish Government’s national planning policies for achieving its vision, which includes

(i) supporting the aim of NPF3 to reduce greenhouse gas emissions and facilitate adaptation

to climate change, and (ii) achieving the target set in the Climate Change (Scotland) Act 2009

of reducing greenhouse gas emissions by at least 80% by 2050, with an interim target of

reducing emissions by at least 42% by 2020. It expressly states as a policy principle that the

planning system should support the transformational change to a low carbon economy

[19] Ministers’ powers to formulate and adopt national planning policy (including

SPP2014 and other non-statutory policies) derive, expressly or by implication, from the

planning Acts; these give them overall responsibility for oversight of the planning system

(Hopkins Homes Limited v Secretary of State for Communities and Local Government and

another [2017] PTSR 623 per Lord Carnwath JSC at paragraphs 19-21). Planning policy is

“not a rule but a guide” (West Berkshire, supra per Laws and Treacy LJJ at paragraph 19).

Ministers are entitled to express their view as to the weight to be given to their policies but

cannot “lay down the law” about them (West Berkshire, supra per Laws and Treacy LJJ at

paragraph 23). As with SPP2014 and the equivalent NPPF in England and Wales,

non-statutory policies such as the Scottish Energy Strategy are material considerations in the

determination of applications for planning permission. Prospective changes to policy, such

as the ministers’ emerging policy position on UOG, can also be material considerations (Cala

Homes (South) Limited v Secretary of State for Communities and Local Government [2011] 1 P &

CR 22 451 per Lindblom J at paragraphs 49-52). Ministers’ policy making powers are not

[20] NPF3 and SPP2014 include specific policies on mineral extraction and UOG. NPF3

“Reserves of coal bed methane in the Scottish midland valley (Central Belt) could

contribute to secure energy supplies in the medium term but will require careful

planning to avoid negative environmental and community impacts from extraction

activities. A framework for this is set out in the Scottish Planning Policy.”

[21] The policies contained in SPP2014 for promoting the responsible extraction of

indigenous coal, oil and gas aimed to minimise impacts on the environment, local

communities, and the built and natural heritage. Paragraphs 245 and 246 set out specific

matters which should be taken into account in relation to proposals for shale gas and coal

bed methane extraction and hydraulic fracturing. This approach represented a significant

tightening of policy when compared to SPP2010. In an affidavit lodged in the present

proceedings, Mr John McNairney, chief planner in the Scottish Government, explained that

by 2016 planning policy applied a risk assessment approach towards UOG with the

intention of establishing buffer zones to protect sensitive receptors from unacceptable risks.

If there was an inadequate buffer, permission was to be refused. Paragraph 245 of SPP2014

provided that when considering applications planning authorities and statutory consultees

must assess the buffer zone distances proposed; where these were considered to be

inadequate the policy stated that the Scottish Government expected planning permission to

be refused. Mr McNairney referred to a statement made by the then planning minister,

Mr Derek Mackay MSP, to the Scottish Parliament on 19 February 2014, in which he stated

that the Government had made clear its direction of travel on UOG; it expected robust

understanding of impacts on the environment before consent could be given.

[22] The Scottish Government’s policy position on UOG at the time NPF3 and SPP2014

were adopted in June 2014 requires to be understood in light of the fact that in

September 2013 it had convened an independent expert scientific panel to report on the

scientific evidence relating to UOG. The remit of the independent panel was inter alia to

deliver a “robust, well-researched evidence base relating to unconventional oil and gas upon

which the Scottish Government can reliably base future policy in this area”. The panel

published its report in July 2014 after the adoption of NPF3 and SPP2014.

[23] On 28 January 2015 the Scottish energy minister, Mr Fergus Ewing MSP, made a

statement to the Scottish Parliament on UOG to the effect that there was to be work on

planning and environmental regulation, a health impact assessment, and a consultation

process on UOG. He stated that given the importance of this work it would be

inappropriate to allow any planning consents in the meantime. He therefore announced

what he described as a moratorium on the granting of planning consents for all UOG

developments, including fracking. The moratorium was to continue until such time as the

work referred to had been completed. The minister stated that a direction would be sent to

all Scottish planning authorities to give immediate effect to that policy. A similar direction

[24] Following this announcement, the Scottish Ministers issued, under powers vested in

them by regulations 31 and 32 of the Town and Country Planning (Development

Management Procedure) (Scotland) Regulations 2013, planning directions requiring local

planning authorities to intimate the receipt of planning applications for any UOG

developments to them; the directions were originally issued in January 2015 and revised in

October of that year. The direction issued on 8 October 2015 was the Town and Country

Planning (Notification of Applications) (Unconventional Oil and Gas) (Scotland) (Number 2)

Direction 2015 (“the 2015 Planning Direction”). The definition of “unconventional oil or gas

development” for the purposes of the 2015 Planning Direction excludes the drilling of

boreholes solely for the purpose of core sampling. Subject to that exclusion, planning

authorities must notify the Scottish Ministers of applications for UOG development; and

they are prohibited from granting planning permission within 28 days of notification to

Ministers. The purpose of the direction is to allow ministers to consider whether to exercise

their power to call in the application for determination by them. The ministers also made

directions in January and October 2015 under the Water Environment (Controlled Activities)

(Scotland) Regulations 2011. The 2011 regulations apply to any “controlled activity” as

defined in regulation 3(1); this extends to activities liable to cause pollution of the water

environment. The Water Environment (Controlled Activities) (Unconventional Oil and Gas

Development) (Scotland) (No. 2) Direction 2015 (“the 2015 SEPA Direction”) requires SEPA

to refer for ministerial determination any application for authorisation to carry on any

controlled activity in connection with UOG development, subject to the same exclusion as in

the case of the 2015 Planning Direction. The 2015 Planning Direction and the 2015 SEPA

Direction gave legal effect to the moratorium. The power of the Scottish Government to call

in planning applications for determination by them, coupled with the 2015 Planning

Direction and the 2015 SEPA Direction gives Scottish Ministers the means to control two of

the essential legal requirements for onshore extraction of UOG. By refusing planning

permission or authorisation of controlled activities under the 2011 regulations, the Scottish

Government could prevent onshore UOG development extending beyond drilling of core

samples. To date, the notification requirements under the 2015 Planning Direction have not

been triggered. No application has been remitted to ministers by SEPA under the

[25] On 6 February 2015 the Directorate for Planning and Environmental Appeals

(“DPEA”) advised parties to the Letham Moss planning appeals that in view of the

ministerial statement made on 28 January 2015 the reporters proposed to suspend work on

their report to ministers and that the appeals would be sisted to await the outcome of the

research and consultation announced by the Scottish Government. On 12 October 2015 the

reporters published a notice on the DPEA website intimating that their work on the appeals

[26] In late 2015 and 2016 the Scottish Government commissioned a series of reports and

research projects from a range of experts. The purpose of these strands of work was to

address a number of gaps in the evidence identified by the independent expert scientific

panel which had reported in July 2014. Reports were obtained on economic impacts and

scenario development (from KPMG), on climate change impacts (from the committee on

climate change), on understanding and monitoring induced seismic activity (from the British

Geological Survey), on transport issues (from Ricardo), on decommissioning, site restoration

and aftercare (from AECOM), and on the health impact of UOG (from Health Protection

Scotland). The research reports were published in full on 8 November 2016.

[27] In January 2017 the Scottish Government launched a public consultation exercise by

publishing a consultation document entitled: “Talking Fracking - a consultation on

unconventional oil and gas”. In the foreword the minister for business, innovation and

energy, Mr Paul Wheelhouse MSP, explained that once the consultation had closed and the

responses had been independently analysed, the Government would consider the full range

of evidence, and make its recommendation. He said that the Government would then ask

the Scottish Parliament to vote on the recommendation, and the Government would come to

what he described as a final decision by the end of 2017 on whether or not UOG has a role in

Scotland’s energy mix. The consultation period lasted 4 months. There were 60,535 valid

responses to the consultation. About 99% of the responses were opposed to fracking.

[28] On 3 October 2017 Mr Wheelhouse made a statement on UOG to the Scottish

Parliament. The minister opened by stating that the Scottish Government had consistently

taken a cautious, evidence-led approach to considering the potential exploration of UOG in

Scotland. He said that he wished to set out the Government’s “preferred position on the

future of unconventional oil and gas in Scotland which is based on the findings of our

consultation and the extensive evidence we have collated.” The minister went on to explain

that the preferred position would be the subject of a full parliamentary debate and vote after

the recess. He then said that, in line with the Government’s statutory responsibilities, a

strategic environmental assessment would be commissioned following the parliamentary

vote to assess the impact of the Scottish Government’s position “prior to its finalisation.”

[29] Mr Wheelhouse continued by setting out the findings of the public consultation. He

stated that reaching a “decision” on UOG had been the culmination of a period of careful

and comprehensive evidence gathering. He said that the Government had not taken the

process or the decision lightly. He then proceeded to review the research findings. Having

dealt with the findings of the research and with the outcome of the process of public

“Taking all that into account, and balancing the interests of the environment, our

economy, public health and public opinion, I can confirm that the conclusion of the

Scottish Government is that we will not support the development of unconventional

To put that position into immediate effect, we have today written to local authorities

across Scotland to make it clear that the directions that give effect to the moratorium

will remain in place indefinitely. That action means that we will use planning

powers to ensure that any unconventional oil and gas applications are considered in

line with our position of not supporting unconventional oil and gas.

Let me be clear: that action is sufficient to effectively ban the development of

unconventional oil and gas extraction in Scotland. The decision that I am

announcing means that fracking cannot and will not take place in Scotland.

[30] The minister referred to the fact that the transfer of licensing powers from

Westminster to Holyrood had been expected to occur in February 2017 but had yet to be

progressed by the UK Government. He explained that he had written to the Secretary of

State for Business, Energy and Industrial Strategy in the UK Government to set out the

Scottish Government’s position on the future of UOG in Scotland and to seek assurances

that the proposed devolution of licensing powers would not be affected by Brexit.

“Although that is important, I want to make it crystal clear that using our planning

powers in the way that I have set out allows us to deliver our position, no matter

what Westminster decides. I am aware that there is a proposal for a Member's Bill on

this issue from Claudia Beamish. However, the use of planning powers is an

effective and much quicker way to deliver our policy objective, as with our actions

on nuclear power stations. Legislation is therefore not necessary.”

[31] It is convenient to explain at this point that on 1 June 2016 there had been a vote in

the Scottish Parliament on an amendment to the Environment, Climate Change and Land

Reform Bill moved by Claudia Beamish MSP. The amendment sought an outright ban on

fracking. It was passed, in a non-binding vote, by 32 votes to 29 with the Scottish National

[32] Towards the end of his statement on 3 October 2017 the minister said the following:

“Taking full account of both the available evidence and the strength of public

opinion, my judgment is that Scotland should say ‘no’ to fracking. That position will

be reflected in our finalised energy strategy, which we will publish in December.

The next step in this process will be for the Scottish Government to lodge a motion

for debate, to allow the Parliament to vote on whether to support our carefully

[33] In the debate following the minister’s statement Claudia Beamish welcomed the

indefinite extension of the moratorium, but she observed that this was not “as strong as a

full legal ban” and could be overturned at any point “on the whim of a future minister”. In

response, Mr Wheelhouse stated that the Government had put in place through the

measures he had outlined “an effective immediate ban on unconventional oil and gas

[34] At a later stage in the parliamentary debate, Mark Ruskell MSP said that “we do not

have a ban in front of us”. He asked the minister when the Government would introduce a

permanent ban by using Scottish planning policy, environmental regulations, and licensing

powers. In reply, the minister said that he was taken aback because he did not think that

Mr Ruskell had listened to what he had said in his statement. The minister added this:

“Using planning policy, we have put in place an immediate ban on unconventional

oil and gas extraction activities in Scotland… We believe that the position is robust…

I give reassurance – I tried to make it crystal clear in my statement – that there is, in

effect, a ban on unconventional oil and gas activities in Scotland.”

[35] On 3 October 2017 Mr McNairney wrote to the heads of planning at all Scottish local

authorities (“the 2017 letter”). He drew their attention to the announcement that, on the

basis of the available evidence, the Scottish Government did not support the development of

UOG in Scotland. The letter advised that the Government would continue to use planning

powers to give effect to this policy. The 2015 Planning Direction which gave effect to the

moratorium on UOG would continue to remain in force. The notification arrangements

would be on the same basis as set out in the original planning direction issued on 28 January

2015. Mr McNairney’s letter also stated that as required under the Environmental

Assessment (Scotland) Act 2005 (“the 2005 Act”), the Scottish Government would shortly

commission a strategic environmental assessment of its preferred position on UOG.

[36] On 5 October 2017, at First Minister’s question time, Mr Ruskell observed that there

was concern that the ban was not yet legally watertight “as it merely extended a temporary

brake on planning decisions”. He asked the First Minister if she would “get the ban

properly over the line by putting it on the same footing as the ban on new nuclear power

stations, and whether she would commit to using the licensing powers when they arrived”.

In reply to Mr Ruskell’s question, the First Minister said this:

“The ban on new nuclear energy in Scotland is done through planning powers and

that is exactly what we are proposing for the ban on fracking. Let me be clear,

because to some ears, it will sound as if some members are dancing on the head of a

pin: fracking is being banned in Scotland – end of story. There will be no fracking in

… What Paul Wheelhouse outlined to the chamber earlier this week is an effective

way of banning fracking and … is the quickest way of banning fracking. Instead of

continuing to have this abstract argument, those who, like me, do not believe that

fracking should go ahead in Scotland should welcome the fact that fracking in

[37] On 24 October 2017 the promised debate on UOG took place in the Scottish

Parliament. In opening the debate Mr Wheelhouse said that the Scottish Government was

honouring the commitment it had previously given to allow the Parliament an opportunity

to “endorse our carefully considered and robust position on unconventional oil and gas.”

Mr Wheelhouse went on to explain that in coming to their position he had sought legal

advice and considered precedents, including the Government’s position on not supporting

new nuclear power stations or underground coal gasification. The minister then said this:

“The approach that we have adopted, using our fully developed planning powers, is

to set out a robust and effective ban, using planning policy. Our approach ensures

that decisions on onshore unconventional oil and gas developments will be made in

line with planning policy and procedure, and within the framework of Scottish

Government policy – policy that does not support unconventional oil and gas

After this debate, we will issue a written policy statement on our position on

unconventional oil and gas. That will support the preparation of a strategic

environmental assessment, which I propose will commence shortly and conclude in

summer 2018. We will then set out our finalised position, which will be reflected in

“That the Parliament agrees with the Scottish Government’s position of not

supporting the development of unconventional oil and gas in Scotland; endorses the

government’s decision to introduce an immediate and effective ban on onshore

unconventional oil and gas developments using its devolved powers, in line with the

Scottish Ministers’ statutory responsibilities, and notes that this position will be

subject to a strategic environmental assessment before being finalised.”

An amended motion was passed endorsing the Government’s decision to introduce an

immediate and effective ban on UOG and noting that this position would be subject to a

[38] On 8 November 2017 DPEA sought parties’ views on further procedure in the

Letham Moss planning appeals in light of the ministerial announcement made on 3 October

and the motion passed in Parliament. By email sent on 29 November 2017 DLA Piper, the

petitioners’ solicitors, advised DPEA that the petitioners were still considering the

implications of the Scottish Government’s revised policy announcement on their clients’

position. The email stated that if the appellants decided to insist on the reporters’

recommendations being submitted to Scottish Ministers (as to which no decision had yet

been made), it would be expected that the ministers would attach overriding weight to their

new “no support” planning policy and refuse the appeals, regardless of the reporters’

recommendation. The issue for the reporters, according to DLA Piper, would be whether as

a matter of law, the Scottish Ministers’ new policy was a relevant material consideration

which the reporters would be required to take into account and, if it was such a

consideration, what weight (if any) should be attached to that policy “in circumstances

where it has still to be taken through a strategic environmental appraisal and adopted into

[39] On 7 December 2017 the Scottish Government published a position statement on

UOG. It summarised the investigations and research that had been carried out and referred

to the ministerial statement made on 3 October 2017. The position statement explained that

any policy decision that had potential for significant environmental effects had to be subject

to a strategic environmental assessment prior to its finalisation; this was required under the

2005 Act. The position statement said that it was anticipated that this assessment work

would commence in the summer of 2018, after which the policy on UOG would be finalised.

The statement explained that on the basis of the research it had commissioned the Scottish

Government did not support the development of UOG in Scotland. The Government would

embed its position on UOG in the next iteration of the National Planning Framework which

was expected in 2020 “thereby giving an assurance (that) the policy would carry significant

[40] On 13 December 2017 DLA Piper wrote again to DPEA by email. They explained

that they were seeking the opinion of senior counsel on the legal implications of the

ministerial announcement of 3 October 2017. Without prejudice to their clients’ final

position, they expressed the view that ministers would presumably attach significant weight

[41] On 20 December 2017 the Government published the Scottish Energy Strategy. This

stated that the Government’s preferred policy position would be subject to a strategic

environmental assessment. It explained also that, once finalised, the policy on UOG in

Scotland would be reflected in the next iteration of the National Planning Framework.

[42] On 28 December 2017 the petitioners raised the present proceedings.

[43] The UK Government has waived the PEDL annual rental fees for PEDLs 133 and 162

[44] It is true, as Mr Moynihan QC highlighted on behalf of the petitioners, that ministers

in the Scottish Government repeatedly stated to the Scottish Parliament that they had

introduced an effective and robust ban on fracking in Scotland and that they had done so by

means of the powers given to them (expressly or by implication) under planning legislation;

what they referred to as their “planning powers”. These statements (whilst they are

admissible in the context of judicial review of executive action: see for example, Toussaint v

A.G. of St Vincent & the Grenadines [2007] 1 WLR 2825) are not, however, determinative of the

legal issue that the court must address in the present petition. The legal question is not

whether ministers have accurately described or commented on their understanding of the

legal effect of the various steps they have taken or authorised to be taken under the planning

system, but the fundamentally different question of what the legal effect of those steps really

is. The latter question is one of law for the court to decide, on the basis of an objective and

independent legal analysis of the nature and effect of the Scottish Government’s acts and

[45] In carrying out this legal analysis it is important to identify what the relevant acts

and decisions of the Scottish Government actually are in the present context. In my view

they are: (a) the decision to announce a “preferred policy position” to the effect that the

Scottish Government will not support the development of UOG in Scotland; and (b) the

decision that the 2015 Directions should continue in force indefinitely. These are the two

decisions that are at the heart of the Scottish Government’s stance on fracking as matters

[47] As far as the preferred policy position is concerned, a number of points seem to me

to be important. First, the evidence shows that the policy position announced so far has

never been intended to be a final policy; that was made clear by the minister in the

statement he made to the Scottish Parliament on 3 October 2017 - he explained that statute

(the 2005 Act) required that a strategic environmental assessment had to be carried out

before the policy could be finalised. The fact that the policy position was expressed as being

a “preferred” one shows that the Scottish Government understood, in my view correctly,

that unless and until the strategic environmental assessment was completed, a policy on

UOG could not lawfully be finalised and adopted. I shall come back to consider the

2005 Act in more detail later. I note that the position statement in turn made clear that there

required to be a strategic environmental assessment before the policy could be finalised.

[48] Second, I reject Mr Moynihan’s submission that in understanding the intended effect

of the policy no account should be taken of the position statement published by the Scottish

Government on 7 December 2017. That seems to me to be an artificial and unrealistic

approach, particularly in view of the fact that the minister explained to the Parliament

during the debate on 24 October 2017 that the Scottish Government would issue a written

policy statement setting out its position. In the circumstances, I consider that regard must be

had to the position statement when it comes to considering the true meaning and effect of

the Scottish Government’s stance. It is notable that the petitioners do not attack the position

[49] Third, when one looks at the various ways in which the policy (or more accurately

the emerging policy) has been expressed, it seems to me that what it amounts to is a

statement by the Scottish Government that it does not support the development or

extraction of UOG in Scotland. Nothing else that ministers have said about the effect of the

policy amounts to a formulation or articulation of the policy, but rather to commentary on it.

Such commentary does not, in my opinion, affect the meaning of the emerging policy. The

meaning of the emerging policy is a question of construction for the court; the opinions of

ministers or MSPs on that issue or on the import or merits of the policy are irrelevant to that

question (see R (Public Law Project) v Lord Chancellor [2016] AC 1531 per Laws LJ in the Court

of Appeal at paragraph 20). So, for example, when Mr Wheelhouse said on 3 October 2017

that the Government’s actions were sufficient to effectively ban the development of UOG in

Scotland he was referring back to the two decisions I have identified: (a) the announcement

of the preferred position and (b) the decision to maintain the 2015 Directions in place

indefinitely. He was expressing his and the Government’s then view as to the effect of those

steps. The First Minister was engaged in essentially the same exercise when she answered

[50] So, the ministerial comments reflecting the opinion that there was an effective ban on

fracking are (a) irrelevant to the legal question before the court; (b) not binding on the court;

address; and (d) to the extent that they did not accurately express the legal effect of the

decisions taken must be left out of account when it comes to answering the legal question.

[51] The other point to notice in this connection is that the emerging policy does not in

fact provide that the development or extraction of UOG in Scotland is to be prohibited. It

says something different, namely that the Scottish Government does not support such

activities. The petitioners contend that a policy of no support equates to an outright ban or

that, in any event, the policy of no support was ambiguous and should therefore be

construed compatibly with the ministerial commentary on it. In my opinion, the emerging

policy is not ambiguous. It means what it says: the Scottish Government does not support

fracking. It does not mean that any planning or other application for consent to carry on

such activity must be refused as a matter of law. It conspicuously does not stipulate that the

Scottish Government has banned fracking. This is not a technical or legalistic distinction.

The policy reflects the Scottish Government’s provisional evaluation of the position as at

October 2017 based on the outcome of their public consultation and the other evidence

available to them at that time. In light of those sources of information, they stated that their

preferred position was not to support fracking; it seems to me that this provisional view

does not amount to an attempt to lay down a legally enforceable rule, applicable to all

[52] Fourth, the petitioners’ approach reflects a misconception as to what a planning

policy truly is. A policy is not a rule; it is merely a guide (see West Berkshire supra per Laws

and Treacy LJJ at paragraph 19). It is axiomatic that a decision maker (including the Scottish

ministers in the context of a called-in application) is not bound by any rule of law to follow

policy, however strongly expressed that policy may be; he or she is entitled to depart from it

in the event that the particular facts and circumstances of the application under

consideration, when they are evaluated in the light of all relevant evidence (including the

policy), justify such a course being followed. It is accordingly open to a decision maker, as

matters currently stand, to grant planning permission and other consents needed to allow

UOG developments in Scotland to proceed, notwithstanding the government’s emerging

[53] To the extent that some sections of the ministerial statements made to the Scottish

Parliament were capable of being read as suggesting that the policy would amount to a ban

on fracking, Mr Mure QC accepted on behalf of the Lord Advocate that such statements did

not accurately reflect the legal position; they were to that extent mistaken. The way

Mr Mure put it was to say that the concept of an effective ban was a gloss; it was, he said,

the language of a press statement. Mr Moynihan, for his part, urged the court to take the

view that no meant no and that ministers should be taken at their word. In my opinion the

petitioners’ argument is unsound; when the government’s policy position is properly

understood as a matter of law, ministers have not laid down an absolute and unbending ban

on fracking. The position statement correctly sets out the legal effect of the emerging policy

“The outcome of our public consultation shows that in those communities which

would be affected, there are considerable concerns about the potential impacts and

It is the Scottish Government’s position that the research we have commissioned and

considered does not provide a strong enough basis from which to address those

On this basis the Scottish Government does not support the development of

This position is implemented using the fully devolved planning powers to establish

robust and effective controls. On 03 October the Chief Planner wrote to local

authorities across Scotland to make clear that the Planning Direction of 2015 will

This approach ensures decisions on onshore unconventional oil and gas will be made

in line with planning policy and procedure, and within the framework of Scottish

Government policy – a policy that does not support unconventional oil and gas

The final paragraph of this extract rightly explains that decisions are expected to be made

“in line with” planning policy and procedure; this is different from stipulating that the

policy must be followed in every case. The same point is made by the reference to decisions

having to be taken “within the framework” of the Scottish Government’s policy. The

position statement makes clear that the Government’s intention was for its policy to carry

significant weight in development planning and decision making; in other words, the policy

would not be determinative of planning applications. I note that this was the view put

forward by DLA Piper, on behalf of the petitioners, in their correspondence with DPEA in

the aftermath of the October 2017 ministerial statement. A policy that it does not support a

particular type of development is, I consider, a policy that central government is entitled to

adopt. It should also be recalled that the Scottish Government is entitled to articulate a

planning policy in broad, unqualified, and indeed robust terms; it need not expressly state

in the formulation of the policy that it may be subject to exceptions - after all the objective of

the policy maker is that his or her policy should be followed. When a minister articulates a

planning policy there is no legal requirement incumbent on him or her to spell out that in its

application the policy is constrained by considerations of fairness, good faith or the

obligation to take account of the facts and circumstances of the individual case (see

West Berkshire supra per Laws and Treacy LJJ at paragraphs 21, 25 and 28).

[54] As far as the 2015 Directions are concerned, these are essentially procedural in

character. The 2015 Planning Direction requires planning authorities to notify Scottish

Ministers of applications for UOG development; this allows central government to consider

whether to call in the applications for determination. The 2015 SEPA Direction requires

SEPA to refer for ministerial determination any application for authorisation to carry on any

controlled activity in connection with UOG development. It is clear that neither of these

directions makes provision as to the content, meaning or effect of any planning policy. They

do not create a ban on fracking. The directions were lawfully made under statutory powers.

They require to be given effect by the authorities to whom they are addressed.

[55] I conclude that neither the preferred policy position nor the 2015 Directions

introduced a prohibition against fracking in Scotland. No decision has been made on what

the final policy position of the Scottish Government will be in relation to fracking.

[56] Strategic environmental assessment (“SEA”) is regulated by the 2005 Act. The

purpose of SEA is to ensure that the competent authorities take significant environmental

effects into account when inter alia preparing and adopting plans or programmes (Walton v

Scottish Ministers 2013 SC (UKSC) 67 per Lord Reed at paragraph 11). Section 1(1) of the

(a) during the preparation of a qualifying plan or programme, secure the carrying

out of an environmental assessment in relation to the plan or programme; and

(i) where the plan or programme is to be submitted to a legislative procedure for

[57] As I have explained, the current position is that the Scottish Government’s preferred

policy of no support for fracking has not been finalised; it remains under preparation and

subject to further consultation and evaluation. There was no dispute between the parties

that a new planning policy on UOG development would be a “qualifying plan or

programme” for the purposes of the 2005 Act. Mr Moynihan submitted that “adoption” in

section 1(1)(b)(ii) meant “brought into effect”. Since a new planning policy banning fracking

had, he said, been brought into effect without a SEA having been carried out, there had been

a breach of section 1(1) and the policy was accordingly unlawful. As I have explained, I

consider that a new planning policy banning fracking has not been made; accordingly, no

such policy has been brought into effect. The current position is that there is an emerging

planning policy, which has not been finalised; the emerging policy does not ban fracking.

[58] In addressing the petitioners’ submission, it is important also to note that the

2005 Act provides for a process to be followed through in the course of preparation of a

qualifying plan or programme. The cornerstone of the process for carrying out a SEA is the

preparation and publication of an environmental report. Section 14(2) of the 2005 Act

“The report shall identify, describe and evaluate the likely significant effects on

taking into account the objectives and the geographical scope of the plan or

Thus, in order to prepare an environmental report, it is necessary first to have a proposed

plan or programme. In the present case, I consider that the only sensible approach which is

consistent with the scheme and purposes of the 2005 Act is to hold that the Ministers’

preferred policy position as outlined in late 2017 constitutes the proposed plan or

programme. I note also that in terms of section 15(1) of the 2005 Act, before deciding on the

scope and detail of the information to be included in the environmental report, and the

consultation period, the responsible authority must send to consultation authorities, such as

SEPA and SNH, such sufficient details of the qualifying plan or programme as will enable

the consultation authority to form a view on those matters. Again, this shows that it is

necessary to have a clear plan or programme in mind in order to submit it to the SEA

process. Finally, under section 16 the responsible authority must: (a) provide consultation

authorities with a copy of the environmental report and the qualifying plan or programme

to which it relates; (b) publicise those documents; and (c) thereafter consult for a period “of

such length as will ensure that those to whom the invitation is extended are given an early

and effective opportunity to express their opinion on the relevant documents”. Again, it

would seem that the consultation process can only work if there is a proposed plan or

[59] It follows from this analysis that, as matters presently stand, there is a preferred

policy position which is to be regarded as a proposed plan or programme; that is what will

now go forward to the stage of a SEA. This will allow for a fully informed consultation

process based on the information assembled in the course of the expert investigations

in 2015-16; the responses to the public consultation exercise in 2017; and the direction of

travel of planning policy currently favoured by the Scottish Government. Mr Mure

submitted that all this would be consistent with the objective of the 2005 Act and the EU

Directive which it implements. It seems to me that this analysis is correct. It is worth noting

that Article 1 of Directive 2001/42/EC provides that its objective is to provide for a high level

of protection of the environment and to contribute to the integration of environmental

considerations into the preparation and adoption of plans and programmes by ensuring that

an environmental assessment is carried out of certain plans and programmes which are

likely to have significant effects on the environment. In my opinion, the process now

underway will achieve this objective. I note that the consultation on the environmental

report is expected to begin in July 2018 and to last for 8 weeks; it will consider reasonable

alternatives. In accordance with the Scottish Government’s standard practice, a Business

and Regulatory Impact Assessment (“BRIA”) will be conducted at the same time.

Thereafter, when considering their final policy position, Scottish Ministers are obliged to

take account of the environmental report and every opinion expressed by the consultation

authorities and the public (section 17 of the 2005 Act). Mr Moynihan submitted that the

procedure which the Ministers proposed to follow was inconsistent with their own guidance

“the SEA should begin at an early stage in a plan’s preparation, as it is important that

the future consultation on the plan and the environmental report takes place when

ideas are forming and policy options are still being actively considered”.

He submitted that the policy had not only been formed, it had been applied and had had an

impact. In my view, this submission is unsound. Policy has not been formed; it is still

[60] It follows that the petitioners’ challenge insofar as based on failure to comply with

[61] Since I have held that, as a matter of law, there is no prohibition against fracking in

Scotland, the petitioners’ other grounds of challenge may be dealt with briefly; essentially,

they were all predicated on the proposition that the Scottish Government had imposed an

effective prohibition against fracking. First, the challenge based on alleged unlawful fettering

of discretion must fail. The time for evaluating whether discretion has been fettered is at the

stage when the final policy comes to be applied in the context of determination of an

application for consent to proceed with a UOG development (West Berkshire supra per Laws

and Treacy LJJ at paragraphs 17 and 21). That point has not been reached. I can see no basis

for holding that the preferred (emerging) policy operates so as to fetter the fair and proper

determination of planning applications in accordance with the applicable statutory

[62] Second, the petitioners complain that ministers have used their statutory powers

for an improper purpose. This ground of challenge, which substantially overlaps with the

first, again depends on a ban having been put in place. Since I have concluded that there is

no ban, this line of attack cannot succeed. Moreover, I can see no merit in the contention

that the Scottish Government has misused its statutory powers. The Scottish

Government’s power to formulate and adopt national planning policy is derived, expressly

and by implication, from the 1997 Act. The emerging policy will take its place among

other local and national policies, and along with those policies will carry weight at the

point when a planning application (or application under the 2011 regulations) falls to be

determined. The position is quite different from the one that arose in Laker Airways v

Department of Trade [1977] QB 643 where guidance issued by the Secretary of State had the

purported effect of undermining the policy reflected in primary legislation.

[63] Third, there is no substance in the petitioners’ case insofar as based on breach of

legitimate expectation. It is clear that the Scottish Government’s position on UOG extraction

has been developing for a period of some years. There can be no legitimate expectation as to

the way in which broad and discretionary ministerial powers, including the power to

formulate policy, will be exercised. The petitioners have failed to identify any statement or

assurance given by ministers that their policy on UOG would remain unaltered in the

future. On the contrary, it must have been clear to the petitioners that ministers were

reviewing their policy; indeed, all planning policies are inherently transient and liable to be

reviewed and developed. As commercial investors, the petitioners would be well aware of

this. It seems to me that the only expectation that the petitioners could legitimately claim to

have was that when planning (and other) applications came to be decided, they would be

lawfully determined in accordance with the law and policy then applicable. For these

reasons the petitioners’ complaint of breach of legitimate expectation must, I consider, be

[64] Turning next to the petitioners’ case based on infringement of their rights under

Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”), this

too can be briefly dealt with. Mr Moynihan argued that the petitioners’ interests in the

PEDLs, including legitimate expectations of the term extensions for which they provide, and

the petitioners’ financial resources amounted to possessions for the purposes of A1P1. He

maintained that the PEDLs had been frustrated, without consideration having been given by

the Scottish Government to the financial consequences, for example in relation to

decommissioning costs; no attempt had been made to strike a fair balance he said. Mr Mure

submitted in response that in the circumstances of the present case the petitioners had no

[65] This aspect of the dispute again requires to be assessed on the basis that at present

there is only an emerging and unfinalized planning policy of no support for UOG extraction;

as I have explained, this does not amount to an outright ban. The petitioners’ arguments on

this branch of their case were predicated on the basis that their interests in the PEDLs would

be of no commercial value in the event that the alleged ban on fracking remained in place.

In my opinion, it is not possible at the present time to assess what the effect of any eventual

policy on fracking may be on the petitioners’ interests in the PEDLs. The SEA and BRIA

processes are still to be followed through; clearly it would be inappropriate for the court to

attempt to prejudge what the outcome of those processes may be or to try to predict what

the terms of any final planning policy may ultimately transpire to be. The eventual terms of

the policy, its justification and aims, the impact which it will have on the holders of PEDLs

such as the petitioners, and its proportionality are all matters that are highly germane to any

argument based on A1P1. The court cannot come to any view on such issues until a final

policy has been adopted. The petitioners’ complaint of a breach of their rights under A1P1

[66] The emerging policy is merely one consideration to which regard will be paid in the

determination of any application by the petitioners for planning (or other) consent. Since

the emerging policy does not amount to a ban, I cannot see how it interferes with any

possessory interest that the petitioners may have in their PEDLs. I did not understand

Mr Moynihan to submit that if there was no ban there was still nonetheless an interference

with the petitioners’ A1P1 rights. It should also be borne in mind that the petitioners have

never had any legitimate expectation that they would obtain all (or indeed any of) the

necessary permissions for the purposes of UOG extraction. They have not been deprived of

their interests in the PEDLs; these have not been withdrawn or revoked. There has been no

legislative change affecting the viability of the PEDLs. Such possessory interests as the

petitioners might have in the PEDLs are, in any event, highly vulnerable to the inherent

commercial risks of an industry that is constantly affected by fluctuations in market prices.

Having regard to these factors and to the substantial uncertainty that exists about the extent

of the recoverable amount of UOG in Scotland, I am doubtful whether the petitioners’

interests in the PEDLs would qualify as possessions for the purposes of A1P1. It seems to

me that there is considerable force in the views on similar issues expressed by

Sir Christopher Bellamy QC in R (Royden) v Wirral MBC 2003 BLGR 290 at paragraph 143:

“Even assuming that a hackney carriage vehicle licence, or its value, constitutes

'property', that 'property' arises solely because of the legal regime in force in the

Wirral which restricted the number of licences in issue. It has been the case, at least

since 1985, that the restriction on the number of licences in issue in the Wirral could,

in law, be removed. It follows that anyone acquiring a licence after 1985 did so on

the implied understanding that that might occur. The 'property' in the licence was,

therefore, inherently subject to the possibility of such a change occurring. On this

view, there is no 'interference' with the property, since the possibility of 'de-

restriction' occurring was always intrinsic to the 'property' itself. This approach may

also be expressed in wider terms, with which I myself would respectfully agree,

namely that changes in the law which may affect property values, or the value of a

business, cannot normally be impugned under art 1 of the First Protocol solely on the

grounds that a change in the law has caused a diminution in value.”

[67] It is not, however, necessary for me to come to any concluded view on these and

other questions raised in the context of this branch of the case since I consider the claim

[68] Finally, the petitioners argued that the alleged ban on fracking was outside the

devolved competence of the Scottish Ministers since it related to a reserved matter, namely

“oil and gas, including - (a) the ownership of, exploration for and exploitation of deposits of

oil and natural gas” (Scotland Act 1998 Schedule 5, Part 2, Head D2(a)). This too must fail

on the ground that there is no ban. In any event, the argument seems to me to be

misconceived: town and country planning is not a reserved matter; nor is protection of the

environment. The powers exercised by ministers in relation to the emerging policy of no

support for fracking and the 2015 Directions come under these heads and are only loosely or

consequentially connected with the oil and gas reservation in the Scotland Act (see Christian

Institute v Lord Advocate 2017 SC (UKSC) 29 at paragraphs 28-33). Scottish Ministers are not

precluded from making policy in respect of planning and environmental issues raised by, or

affecting, reserved matters in Scotland. The 2015 Directions were lawfully made under

[69] The petition is predicated on the proposition that the Scottish Government has

introduced an unlawful prohibition against fracking in Scotland. Whilst acknowledging that

there have been a number of ministerial statements to the effect that there is an effective ban,

the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such

statements were mistaken and did not accurately reflect the legal position. The stance of the

Scottish Government before the court is that there is no legally enforceable prohibition. For

the reasons set out in this judgment, I consider that the Government’s legal position is

soundly based and that there is indeed no prohibition against fracking in force at the present

time. What exists at present is an emerging and unfinalized planning policy expressing no

support on the part of the Scottish Government for the development or extraction of UOG in

Scotland. The process of policy development is not yet complete; the important stages of a

strategic environmental assessment and a business and regulatory impact assessment have

still to be carried out. There is no basis on which the court should interfere with those

procedures; the petitioners will have a full opportunity to contribute to and participate in

them. I conclude that since there is no prohibition against fracking, the petitioners’ case is

unfounded; their application for judicial review of the alleged ban must accordingly fail.

[70] I shall sustain the respondents’ first and second pleas-in-law, repel the petitioners’

pleas and refuse the petition. I shall reserve all questions as to expenses.

Scottish Court of Session Decisions