Exclusive: Friends of the Earth says revised national planning policy makes it ‘virtually impossible’ for councils to refuse fracking schemes

The government is facing a legal challenge over its new planning policy, which campaigners say was illegally adopted because the government failed to assess its environmental impact.

The revised National Planning Policy Framework, published in July, informs local policies across England, from planning permission to town and country planning and land use. It has significant weight in development decisions, from the amount and location of built development to the way environmental impacts are assessed, and also deals with policies concerning air pollution, energy generation, water management and biodiversity.

A strategic environmental assessment (SEA) is required by EU law for public plans relating to land use and planning, among other things. It is required wherever policies are likely to have a significant impact on the environment. Friends of the Earth wants to force the government to undertake an SEA, consult the public and modify the framework based on those findings.

The NGO has filed a claim at the high court, saying the NPPF makes it “virtually impossible” for councils to refuse local fracking schemes, fails to rule out future coal developments, and introduces harsh new rules for wind energy schemes. It argues it is impossible to gauge the environmental impact of such policies without a strategic assessment.

William Rundle, head of legal at Friends of the Earth, said the group “is concerned that the government pays lip service to leaving the environment in a better state for future generations but in reality does the opposite. Giving the green light to climate-wrecking Heathrow expansion and publishing a new national framework for development in England without any assessment of its major environmental implications begs the question of what happened to good governance.

“This is why we are taking the government to court – to make sure that the government does undertake an environmental assessment of the new framework, so that the public are told about any environmental damage it could cause, and for the government to take that environmental assessment into account to avoid damage in the first place.”

Eloise Scotford, professor of environmental law at UCL, said there is a “very strong” legal argument the government should have carried out a strategic environmental assessment before adopting the framework.

“NPPF is just the kind of strategic planning document that should fall within the scope of the SEA directive,” Scotford told the Guardian.

“The fact that SEA wasn’t explicitly addressed by the government in preparing and updating the NPPF is strange and very surprising.”

The framework says plans and decisions should “apply a presumption in favour of sustainable development”, but Friends of the Earth says: “Without an SEA the NPPF will provide the basis for decisions without knowledge of the environmental effects, and without any opportunity for the public to understand and comment on those effects”.

“If an SEA is carried out the NPPF may well be significantly different”.

Rather than quashing the framework outright, Friends of the Earth is seeking a court ruling to tackle a “systemic issue of illegality” in it.

Concerns have been raised about the contents of the NPPF, from its failing to rule out building on green belts or future coal developments, to imposing strict rules on applications to build wind turbines.

The Campaign to Protect Rural England warns the NPPF treats land as a commodity, rather than a “finite and precious resource” and could encourage property development based on property price speculation and developer profit. It says “Planning is pointless if the outcomes it delivers would be little different from what would happen without a planning system.”

Friends of the Earth says it submitted a detailed response to the government consultation, stating an SEA was required. Following the adoption of NPPF without an SEA, the NGO sent a formal pre-action letter on 1 August to the secretary of state for housing, communities and local government, James Brokenshire, but has not yet received a response.

A spokesperson for the Ministry of Housing, Communities & Local Government said: “Environmental protection is at the heart of our new planning rulebook, setting clear expectations for future development. While this legal case is ongoing, it would be inappropriate to comment further.”