Fracking planning battles on this year

Progress toward operational onshore shale sites remains slow, but 2015 promises to be an interesting year for consenting, protesting and prospecting shale in the UK. We highlight the implications of the failed Balcombe judicial review challenge, information challenges and court orders on public protests.

Development picking up

Fracking operations have ground to a halt since Cuadrilla’s operations at Preese Hall triggered minor earth tremors in 2011.  We expect 2015 to be a crunch year for renewed test drilling and fracking:

  • Drilling at Celtique Energy’s Broadford Bridge conventional exploratory well in West Sussex is due to start in the Spring.
  • Ineos has announced significant UK investment plans and IGas reports finding shale gas at its Ellesmere Port site.  Coastal Oil and Gas also intends to explore coal strata in east Kent.
  • Onshore conventional drilling also continues to deliver results – with investors behind the Horse Hill well in Surrey revising their oil estimates up to 8.2m barrels in December last year.

Public protests and legal challenges

parliamentFew onshore applications currently include unconventional techniques or even lateral wells. In the same way as initial opposition to mobile phone masts, public concern can be a material issue for planning. Its weight will be tested on appeal this year. Until there is a track record of incident free operations, the often hysterical response to drilling proposals will continue.

Trespass, occupation and obstruction of the highway dogged efforts to mobilise new test sites in 2014. Ineos’ announcement provoked a protest at its Grangemouth facility in December last year. IGas’s Ellesmere Port site continues to be beset by ‘lock on’ protests and obstructions to the access.

It is therefore significant that:

  • five campaigners have now been convicted of obstructing the highway outside Rathlin Energy’s Crawberry Hill site in East Yorkshire
  • a possession order has been granted to the owner of land outside Rathlin’s West Newton drill site to allow the eviction of a protest camp, with an initial costs award of £10,000.

Applications and appeals lie ahead

Lancashire County Council has now confirmed that it will decide Cuadrilla’s Roseacre Wood and Preston New Road planning applications at the end of January. Third Energy also announced its plans to apply for permission to test frack at Kirby Misperton in North Yorkshire, near the Flamingo World zoo.  Rathlin has also submitted further proposals in East Yorkshire.

Planning appeals will be important to shale in 2015. Celtique Energy has now appealed the refusal of permission for its conventional exploration site near Wisborough, with a Public Inquiry due to start in September 2015. Celtique may still appeal against the refusal of permission by the South Downs National Park Authority for its conventional drilling scheme at Fernhurst.  In the absence of genuine amenity or ecological concerns, the policy framework for shale remains positive.

Balcombe fracking JR claim fails

The High Court has refused to quash West Sussex County Council’s May 2014 temporary permission for temporary exploration and appraisal (including flow testing the existing lateral well) at its Balcombe site in West Sussex.  The Court rejected the grounds of claim brought by the residents’ group in Frack Free Balcombe Residents v West Sussex County Council, concluding that:

  • the authority was entitled to rely on the Environment Agency and HSE regimes in respect of noise, air and other relevant effects. The judgment confirms that the approach recommended in national guidance is correct.  It also illustrates the need to ensure that planning Committees have in front of them a very clear explanation of the interlocking regulatory regimes (and the views of the regulators);
  • public disorder is not a material consideration for these projects: planning authorities are not entitled to refuse permission for an otherwise acceptable scheme on the basis that it would “excite opposition leading to protests designed and intended to disrupt a perfectly lawful activity“.

newsInformation warfare goes on

Decisions of the Advertising Standards Agency on wind and fracking schemes are a reminder to exercise care in the information battles around contentious schemes.

Residents’ Action on Fylde Fracking, which objects to shale gas exploration in Lancashire, has withdrawn its ‘Fracking – The Truth’ newsletter following a complaint to the Advertising Standards Agency by a geologist Vicar and a retired oil and gas engineer. They complained that it used images of fracking practises from outside the UK not permitted in the UK and included “false and misinterpreted scientific data” that amounted to “scientific drivel”.

The ASA is reported as having reached an informal decision upholding several specific complaints about the newsletter, but also finding that other claims were valid (including those over burning gas flares and a lack of fracking-specific environmental regulation).  The residents’ group has voluntarily agreed not to reproduce the newsletter again.

ASA complaints regularly go both ways in planning battles – the ASA has routinely upheld complaints against windfarm promoters on the basis that technical assessments, statements about house prices and their green credentials are misleading but has also required protest groups to withdraw their own claims about the effect of development on house prices.

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Roy Pinnock

About Roy Pinnock

Roy is a partner in the Planning and Public Law team, bringing his experience of working on regeneration projects within local government and as a consultant to his legal practice.

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