The shale gas industry in the UK was given a significant boost by the decision of North Yorkshire County Council to grant planning permission to Third Energy for shale gas extraction at its site near Kirby Misperton
This was a brave decision by members of the planning committee, where seven members to four voted in favour of following the planning officer’s recommendation despite more than 4,000 objections being received.
To date, there has been a serious disconnect between central government’s strong policy support for shale gas on the one hand (in view of the national economic and security of supply benefits this could deliver) and the local impacts, concerns and local politics on the other.
Planning permission is a key regulatory consent but others are also required for a shale gas project, including an environmental permit from the Environment Agency. In this case, the county council will have gained significant reassurance from the environmental permit issued on 11 April 2016 by the Environment Agency (referred to extensively in the officer report) in respect of groundwater activity and mining waste activity from the project and the statement by the Environment Agency that it “is satisfied that the permit will ensure a high level of protection is provided for… human health”.
In granting planning permission, the council was required to focus on whether the development would be an acceptable use of the land and the impacts of the use, rather than the control of processes or emissions themselves, which are subject to other regulatory regimes.
Obtaining the environmental permit from the Environment Agency before members of the planning authority considered the planning application proved to be a good move in practice in view of the bold statement regarding protection for human health, so we may see this approach being adopted at other sites.
Planning applications to permit fracking for shale gas are currently determined by local mineral planning authorities (generally county councils). These applications in the UK have to date been both highly controversial and – to the clear frustration of central government – slow. The political reality is that local politicians do not tend to win votes by consenting to fracking applications. In view of this political dimension, the timing of submission of planning applications, having regard to relevant elections, is an important consideration.
Government ministers will have been keeping a close eye on progress of the Kirby Misperton planning application. As with many controversial energy projects, any planning decision must balance national need against local impacts. Fracking applications have therefore long been a candidate for determination by the secretary of state pursuant to the regime for Nationally Significant Infrastructure.
The decision by North Yorkshire followed a leaked letter from July 2015 that revealed a controversial plan by ministers for shale gas applications to no longer be determined by local authorities. This in turn followed the refusal by Lancashire County Council in June last year of controversial applications by Cuadrilla to drill for shale gas at Preston New Road and Roseacre Wood. These applications are currently the subject of planning appeals by Cuadrilla, and they will be determined by the secretary of state.
While industry and central government will be relieved that a planning permission for shale extraction has finally been granted, they will no doubt be concerned at the length of time it has taken. In many ways this was an easier site than most due to the fact that it involved an existing well from which gas had previously been extracted.
Industry will be hoping the decision by North Yorkshire gives other planning authorities the courage to promptly determine fracking applications areas based on their planning merits. If this does not happen, there is always the right of appeal, and an important moment for the UK shale industry will be when the secretary of state determines the planning appeals made by Cuadrilla later this year.
There will now be an anxious six-week wait for Third Energy and the council to see whether any objector groups bring a judicial review challenge in the courts. Friends of the Earth is currently considering this. Such challenges are often unsuccessful but can cause further significant delay. The 252-page officer report prepared for the council appears to have been heavily lawyer-checked in anticipation of such a challenge.
Fracking projects will always be controversial, but there is much that can be done by industry to improve public relations and convince the majority of the public that the huge opportunity that shale gas represents can be exploited in a responsible manner within a regulatory framework that is fit for purpose. The statement by the chief executive of Third Energy, Rasik Valand, struck precisely the right note when he said the approval was not a victory but a “huge responsibility” to deliver on the commitments made.
Lee Gordon, head of planning and infrastructure, Weightmans LLP