Shale planning: forward guidance is not new policy

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Publication of the Government’s criteria for the 14th Round of Petroleum Exploration Development Licences (PEDLs) has been carefully  choreographed to address concerns about the environmental effects of unconventional exploration, including for shale oil and gas. The DECC publication has been accompanied by additional Planning Practice Guidance (PPG) and written statements to Parliament and the House of Lords.  Whilst the Guidance changes nothing, there are some clear political signposts to which applicants and objectors will need to pay attention.

Hearts and minds

Although the new PEDL areas cover roughly half of Great Britain, the areas identified as the major shale gas/ oil plays by the British Geological Survey are much more limited. The number of PEDL awards is therefore likely to be a small fraction of the 1,040 available 100 km2 licence blocks. Nonetheless, the ‘Planning for hydrocarbon extraction‘ PPG has been prepared to give comfort to those concerned about the effects of development in Areas of Outstanding Natural Beauty, National Parks and World Heritage Sites (WHS).  It states that where unconventional hydrocarbon development in these sensitive areas is ‘major development’, there has to be an exceptional case and a public interest for allowing it to proceed. This is already being heralded as prohibiting  unconventional oil and gas development in these areas other than in exceptional (or in the case of WHS, wholly exceptional) circumstances. That is wholly wrong.

Nothing new

The PPG restates what is already in the NPPF (paragraphs 116 and 133) on development in sensitive areas. There must only be an exceptional case and a public interest where it is ‘major development’. Three things:

  • the Guidance cannot, legally, add anything to the NPPF policies. A plain reading confirms it does not try to. The written Statement to Parliament summarises the approach as simply “recognis[ing] there are areas of outstanding landscape and scenic beauty where the environmental and heritage qualities need to be carefully balanced against the benefits of oil and gas from unconventional hydrocarbons“.
  • the PPG does not say whether fracking is ‘major development’, which is sensible because ‘major development’ is not a precise term. It is not simply ‘minerals extraction and working’ (as, for procedural purposes, under the Town and County Planning Development Management Procedure Order 2010). It must flow from a planning judgment about scale and impactsR (Aston) v SOS CLG [2013] EWHC 1936.
  • the PPG does now emphasise the importance to be attached to onshore exploration in the Government’s Annual Energy Strategy.

The Government has been clear about the national significance of onshore unconventionals. The House of Lords Economic Affairs Committee also called for more to be done to achieve it in May this year.  It is worth bearing in mind in that context how the ‘exceptional circumstances’ test is applied in practice  In the Secretary of State’s recovered appeal decision in February 2013, permission was granted for 250 homes in the AONB at Highfield Farm, Tetbury on the basis that whilst it was ‘major development’ it was justified by the need and lack of alternative sites. In the sensitive areas referred to in the Hydrocarbon PPG, it will be important to be able to show that the intended surface access site is both the best available alternative and as well designed and mitigated as it can be. Transportation, landscape design and noise disciplines will be critical.

Political signposting

Nonetheless, the statements accompanying the PPG make it clear there will be enhanced oversight of planning appeals on these points – recovery by the Secretary of State is likely. Given how that has worked for appeals on the application of the supportive NPPF renewables policies to windfarms, there is a political marker that effects, mitigation and the balance of benefit are going to be very carefully scrutinised by a political decision maker, particularly in the run up to the next election.

Special case?

siteMuch is said about the novel aspects of unconventional oil and gas development onshore. There are regulatory and technical challenges. Transportation, waste and water issues are critical.  West Sussex County Council’s refusal of Celtique’s conventional site mobilisation application at Wisborough Green illustrates the risk that technical work gives a soft target for refusal.

The policy environment for onshore exploration (both conventional and unconventional) is supportive though.  Where schemes are appropriately-sited, well-mitigated and can operate safely from a highways and hydrogeological perspective, it should be rare that they are refused even where they are in AONB and other sensitive areas. After all,

  • the NPPF is clear that energy minerals need to be extracted where they are found and that minerals planning authorities must give great weight to the benefits of the extractive development, including to the economy (paragraph 144);
  • it is clear – following the recent Europa Oil and Gas judgment – that both shale prospecting and production phases fall within the NPPF 90 approach to mineral exploration in the Green Belt – they are not ‘inappropriate development’ per se. Given that the policy approach to Green Belts is intended to preserve openness, that is relevant to the approach to effects in AONB and other areas;
  • the temporary and reversible nature of minerals permissions means the nature of the impacts they have are very different to more permanent forms of development (as recognised by the Inspector in the Europa appeal decision).

199 of the UK’s 2,000 consented onshore wells are at Wytch Farm installations in Dorset, which covers a World Heritage Site, an AONB, several SSSI and various nature reserves.  It is well screened, there has been no discernable impact on property prices and no-one seems to care. Its business rates contribution alone last year was around £3million. If permission was sought now, the answer would presumably still be ‘yes’.

The fact that the PPG singles out unconventional hydrocarbon applications is odd – conventional drilling mobilisation will be largely the same in the initial stages. Applicants will need to look at how they use initial, conventional, applications to set sites up (followed by later approvals for the unconventional operations, which will be largely focussed on lorry movements of water and other wastes). Minerals Planning Authorities will need to be careful how they screen applications for EIA.