January shale – new regime needs care

The House of Commons voted before the Christmas break to allow fracking in National Parks and some other sensitive areas. The vote was taken without time for a debate and the Government has been criticised for ‘sneaking through’ changes. As ever with shale news, the changes are less dramatic, and the freedoms to develop greater, than suggested.

A done deal

parlThe reversal of the ‘outright ban’ on fracking in National Parks and Sites of Special Scientific Interests announced in January 2015 has been on the cards since last July, when the Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015 were first published.

MPs have now simply accepted that they make sense.

Effect of changes

The way that the Petroleum Act 1998 provisions (Section 4A) are now drawn, following changes under the Infrastructure Act 2015, means that DECC will not issue consents for ‘associated hydraulic fracturing’ above 1,000 metres depth. It will only grant them below this outside protected groundwater and ‘other protected areas’ (OPAs).

The new Regulations carve back these OPAs to land below 1,200 metres in National Parks, the Broads, AONB and World Heritage sites. It will therefore be possible to hydraulically fracture in these areas, below this depth.

Planning is not the biggest hurdle

Despite the recent award of 159 more licences, the challenges of achieving planning consents and the oil price continue to represent significant barriers for investors. The Government’s decision to recover Cuadrilla’s appeals in Lancashire illustrates the priority being given to taking a clean decision.

It is worth bearing the following mind though:

  • The planning process for consents needed to simply monitor and test drill sites is complex, but there is no ban on granting planning permission in these areas.  The Government’s planning policy approach remains that authorities should give great weight to both the benefits of the mineral extraction and the need to protect of Areas of Outstanding Natural Beauty (AONB), National Parks and general amenity.  Carefully sited and properly mitigated proposals should stand a good chance where they represent the reasonable best alternative.  Marrying that up with the surface access rights available, and communicating it clearly in the planning process, is a challenge.
  • The amended regime for DECC fracking consents needs to be approached with care.  Section 4A of the Petroleum Act 1998 now means that DECC may be tempted to rule out fracking at sites where planning permission includes some land in OPAs for non-fracturing purposes (e.g. parking or pipework).
  • Legal challenges are likely both to the planning process and the DECC consenting process. The new regime appears to allow DECC to consent surface installations for fracking in OPAs.  Given the likelihood of effects on these areas from above and near to ground operations is likely to be greater than fracking at depth, this may be an unintended aspect of the recent changes.
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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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