Planning guidance on fracking Contents

2Updating and improving guidance

Introduction

7.Our Report begins by considering the core question of whether the planning guidance on fracking is fit for purpose. We focus on three main issues: the definition of fracking, the proposed changes to the National Planning Policy Framework (NPPF), and whether the existing fracking planning guidance requires updating.

Definition

8.We heard that there is “fundamental uncertainty around the definition” of fracking in the planning process.7 Throughout our inquiry, we have heard a wide range of views on whether the current definitions are fit for purpose. There are two key definitions in question: the Infrastructure Act 2015 definition which is based on the volume of fluid used (see Box 1) and the definition in the National Planning Practice Guidance (NPPG), which is based on the process of fracturing rock (see Box 2).

Box 1: Fracking definition in the Infrastructure Act 2015

“Associated hydraulic fracturing” means hydraulic fracturing of shale or strata encased in shale which—

a)is carried out in connection with the use of the relevant well to search or bore for or get petroleum, and

b)involves, or is expected to involve, the injection of—

i)more than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or

ii)more than 10,000 cubic metres of fluid in total.

Source: Section 4B, Clause 50, Infrastructure Act 2015

Box 2: Fracking definition in the NPPG

What is hydraulic fracturing?

Hydraulic fracturing is the process of opening and/or extending existing narrow fractures or creating new ones (fractures are typically hairline in width) in gas or oil-bearing rock, which allows gas or oil to flow into wellbores to be captured.

Source: Paragraph 129, Minerals guidance, NPPG

9.The Infrastructure Act definition of fracking proved the most contentious during our inquiry. Chris Hesketh from Frack Free Dudleston told us that the Act defines fracking in a “very strange way,”8 and Dr Sylvia Bernard stated that it is “open to abuse”.9 The key objection concerned the limited breadth of the definition as it is based solely on the volume of fluid used. We heard that a fluid-based approach does not reflect the technologies on the ground. Specifically, it was noted by Friends of the Earth and a group of lawyers from Cornerstone Barristers that the Infrastructure Act definition of fracking does not include “acid fracturing”, “matrix acidisation”, or the fracturing of rocks by injection at pressure of cooled carbon dioxide or liquefied petroleum gas.10 Food & Water Europe agreed that the definition was limited, stating that “water consumption shouldn’t be the only defining practice… “hydraulic fracturing” is a question of geology, depth, injection pressure, water intensity, chemicals and sands, but also of technology and well density”.11 Food & Water Europe went on to explain one of the impacts of the definition:

By limiting this definition to projects above a fixed threshold for water use, the United Kingdom has excluded a number of fracking operations from the legislation framework otherwise legally binding for this kind of oil and gas extraction.12

10.Mobbs’ Environmental Investigations and Research shared the concerns of Food and Water Europe in stating that this can lead to some developments not attracting a sufficient level of regulation.13 Friends of the Earth noted that this could leave protected areas vulnerable:

There is no ban on surface development of sites in protected areas like National Parks - unless the proposed volume of fluid and target strata meets the definition of Relevant Hydraulic Fracturing (RHF) set out in Petroleum Licensing (Exploration and Production) (Amendment) (Landward Areas) (England and Wales) Regulations 2016.1415

11.The definition of fracking in the NPPG is viewed more positively. A group of planning barristers from Cornerstone Barristers told us that it “has the benefit of being sufficiently wide to capture the colloquial meaning of “fracking”, as well as the other methods of fracturing … It also has the benefit of not referring to criteria such as amounts of fluid”.16 Richard Flinton from North Yorkshire County Council (NYCC) told us that the draft North Yorkshire Joint Minerals and Waste Plan uses the NPPG definition for the following reasons:

If you were to use the definition that is in the regulations around national infrastructure, then you would narrow it down so much so that we feel that applications that just miss that threshold would require all of the same level of consideration as something that hit that definition. We also believe that it is necessary to have something that is clear to the public in terms of what is understood by the term “hydraulic fracturing”; they can then be open to participating in the planning process as a result of a definition that is not completely all-encompassing but is open to their understanding of the phrase.17

12.Nonetheless, the NPPG definition has also been criticised. Cornerstone Barristers stated that this definition is limited by a subsequent paragraph of the Minerals section of the NPPG which excludes other methods of fracking in describing the hydraulic fracturing process as follows: “During hydraulic fracturing, a mixture of water, sand and possibly some chemical additives18 is pumped under pressure down a borehole into the rock unit”.19

13.For MPAs, we heard that the lack of clarity over the definition of fracking can impact local authority resources and hinder public understanding.20 Surrey County Council stated:

Without further clarification regarding the distinction between conventional and unconventional hydrocarbons the two processes are conflated in the eyes of the public with all oil and gas development being the focus for anti-fracking protests with subsequent major resource implications.21

14.Sally Gill said that Nottinghamshire County Council (NCC) has also experienced this, though suggested that changing the definition may have little impact on public understanding:

The wider world and particularly some of the anti-fracking groups will challenge local authorities on any application, whether or not it is related to shale gas development of any form. We have had planning applications relating to conventional oil and gas, and protestors have started spreading rumours that that is related to shale gas and shale gas development. The local authority then has to spend a lot of time saying, ‘No, that does not relate to shale gas’.

Universal definition

15.It has been suggested that the planning process would benefit from a universal definition of fracking. Nicola Howarth from the Peak District National Park Authority told us:

It would help if there was a common definition for fracking. As it is set out in the Infrastructure Act, it is quite scientific. It is obviously an industry definition. There is a definition in the planning practice guidance for minerals, which relates a bit more to the operation of fracking. It would be helpful if the two were possibly combined in some way and there was consensus in trying to get agreement over one definition.22

16.However, we also heard that a universal definition of fracking could be redundant. Andrew Mullaney from Lancashire County Council (LCC) argued that it is not the definition that matters but rather the impacts.23 He expanded on this comment to say that “there is no statutory test in terms of the environmental impact assessment regulations that will trigger fracking or not. In statutory terms, I am not sure it matters, perhaps unless you are in a designated area”.24 This view was broadly reflected by other regulatory bodies. Mark Ellis-Jones from the Environment Agency (EA) told us that “the legislation that we rely on does not contain a definition of hydraulic fracturing and we do not need one in order to put the environmental controls in place that we have”.25 Chris Flint from the Health and Safety Executive (HSE) agreed, saying that “the definition neither helps nor hinders us because the legislation that I described applies equally”.26

17.Nonetheless, we were told that that the definition does impact upon the work of the HSE and the Oil and Gas Authority (OGA). If a fracking site did not meet the Infrastructure Act definition of fracking, the HSE would not be required to visit it before fracking takes place and let the Secretary of State know that they have received notification of weekly reports from the operator.27 Chris Flint clarified that the HSE may still visit the site: “We would do that on a risk-based approach. If we felt it was needed, we would do it”.28 Similarly, the OGA does not require a hydraulic fracture plan if the fluid-based definition is not met. Tom Wheeler from the OGA told us that the Authority reserves the right in guidance to require one should they think there are risks of seismic activity.29 He clarified that “if someone were to come along with a plan to inject an equivalent quantity of some other substance that is not water, we would look at extraordinarily carefully at that, probably more so than we would do in the case of water or the fracking fluids that we are familiar with”.30

18.The Government told us that the Infrastructure Act definition of fracking does not need changing.31 However, it indicated that it intends to change the definition of fracking in the NPPG to that of the Infrastructure Act. The 2018 WMS stated that “we expect Mineral Planning Authorities to recognise the fact that Parliament has set out in statute the relevant definitions of hydrocarbon, natural gas and associated hydraulic fracturing”.32 We were also told that the current NPPG definition is a “discrepancy”:

There is another discrepancy relating to planning guidance on this that predates the Infrastructure Act, and it is the intention of our two Departments to ensure that that is updated so there is no discrepancy between planning guidance and the Infrastructure Act.33

19.The Infrastructure Act 2015 definition of fracking does not reflect the technologies used on the ground nor the public understanding of fracking, leading to a lack of understanding among key stakeholders and significant concerns about loopholes in the current regulatory regime. We therefore believe that the Infrastructure Act 2015 definition is unsuitable in the planning context and recommend that it should not be liquid or volume-based. While we welcome the Government’s intention to unify the definitions of fracking used in the Infrastructure Act 2015 and the National Planning Practice Guidance due to the resultant lack of clarity and uncertainty in using multiple definitions, we are highly concerned at the Government’s suggestion that the Infrastructure Act definition will replace the current definition in a revised National Planning Practice Guidance. We call on the Government to amend the Infrastructure Act definition to ensure public confidence that every development which artificially fractures rock is subject to the appropriate permitting and regulatory regime.

Proposed changes to the National Planning Policy Framework

20.Few witnesses were content with the proposed changes to the NPPF published for consultation in March 2018, which imports a statement concerning the importance of, and need for, on-shore oil and gas development, including unconventional hydrocarbons.34 We heard from some MPAs that the proposed changes would not provide additional guidance. North Somerset Council stated:

The 2012 National Planning Policy Framework (NPPF) clearly has important status as a material consideration in determination of planning applications, but provides little guidance on fracking. It just includes one short specific reference to on- shore oil and gas development… the recently publicised “Draft text for consultation” includes similar limited text on on-shore oil and gas development.35

21.Nicola Howarth from the Peak District National Park Authority agreed:

We would just like to see it updated and expanded. We would also like for it to include national policy on climate change and the Government’s energy policy. It should really include best-practice measures and learning that has accrued so far, in terms of onshore oil and gas exploration. At the moment, it lacks that detail. In terms of technical assessment as well, previously it used to advise authorities on how to assess the impacts of major developments. It also provided technical guidance so that you could quantify those impacts and apportion weight appropriately. There is kind of a policy vacuum in that sense; it no longer provides that.36

22.Concerns were raised from some industry representatives that the NPPF does not sufficiently reflect the Government’s support of shale gas. Matt Lambert from Cuadrilla summarised the key industry concern as follows:

The written ministerial statement states: “There is a national need to explore and develop our shale gas and oil resources in a safe, and sustainable and timely way”. That was in 2015. The current wording in the draft NPPF, or the proposal for changes to it, makes it clear that councils should give this great weight, but does not make it absolutely clear, as we would prefer, that shale gas is a nationally important priority because of energy security, primarily, and because of balance of payments.37

23.However, we also heard from some anti-fracking groups that the proposed changes to the NPPF put too much emphasis on the benefits of fracking, which they argue are not substantiated. Kia Trainor from the Sussex branch of the Campaign for Rural England (CPRE) told us:

We do not think there should be this great weight on the benefit of mineral extraction, particularly the benefits of onshore oil and gas development, without the Government fully making that business case. What are these benefits? They need to be understood before they go in here… We would like more paragraphs within the NPPF to allow decision makers to give weight to moving towards a low-carbon economy and taking climate change into account in their decisions.38

24.In addition to being told that the benefits of fracking included in the proposed revised NPPF are unsubstantiated, we heard that the references to the benefits of fracking contradicted other Government policy and the wider wording of the NPPF, leading to some confusion among MPAs. Andrew Mullaney from LCC told us:

It talks about mineral planning authorities recognising shale gas in the transition to a low-carbon economy. Maybe I am reading too much into it but that seems to me almost like a coded way of saying, “You do not need to worry, MPAs, about shale gas and the carbon emissions that result, because it is taking us on a path, on a transition to a low carbon economy”. I would like to see something more concrete around this apparent inconsistency between the Clean Growth Strategy and the need to promote gas through planning policy.39

25.Nicola Howarth from the Peak District National Park Authority reflected Andrew Mullaney’s initial concern in her comments on the assumption in the proposed wording that MPAs should “plan positively” for fracking developments.40 She told us that such wording “implies that the [fracking] development is already sustainable, whereas in effect you [MPAs] assess whether it is sustainable as part of a planning application “.41

26.Indeed, both the current and revised NPPF ask MPAs to consider how developments are sustainable.42 The consideration of the environmental impacts is one of three key measures of sustainability; it states, among other aspects, that sustainable developments should “adapt to climate change, including moving to a low carbon economy”.43 Chris Hesketh from Frack Free Dudleston told us that “the current planning process is seeking to achieve two things that are at odds with each other; hence ambiguity and confusion exists”.44 He took the view that the Government’s commitment to the Climate Change Act 2008 was “incompatible” with the planning guidance.45 A 2015 Report of the Environmental Audit Committee concluded that “extensive production of unconventional gas through fracking is inconsistent with the UK’s obligations under the Climate Change Act and its carbon budgets regime”.46 CPRE Sussex stated that “no guidance exists within the NPPF/NPPG for MPAs on how to reconcile these competing priorities”.47 When we questioned the Government, it refuted that there were any contradictions between the 2015 WMS and the Clean Growth Strategy:

Not at all… One of the things that we will be doing in this country over the next few years is ending the generation of power using coal, which is twice as dirty as any other fossil fuel, and part of that is because we are able to bring gas into the mix… We would obviously like to decarbonise gas further—that is one of the reasons for focusing so much on carbon capture, usage and storage—but it is a fundamental part of our energy mix and we can achieve our climate change targets using it.48

27.The proposed changes pertaining to fracking in the revised National Planning Policy Framework, published in March 2018, lack detail and create ambiguity about the Government’s position on fracking. It is also counterintuitive that the 2018 Written Ministerial Statement, which moves the goalposts of the Government’s fracking planning policy, was issued after the consultation on the National Planning Policy Framework had closed as it leaves stakeholders unable to comment.

28.The Government must clarify and consolidate the full extent of its fracking policy within the revised National Planning Policy Framework, including how fracking sits with the UK’s commitments to climate change in order to make clear to Mineral Planning Authorities how they can balance competing objectives, and respond to the public’s concerns. Mineral Planning Authorities must continue to consider environmental sustainability as part of the determination of planning applications. If, as a result of the 2018 Written Ministerial Statement, the final version of the revised National Planning Policy Framework is significantly different from that already consulted on, the Government should hold a further consultation.

Accuracy

29.We heard from the Government that it “regularly reviews” its fracking planning guidance. Specifically, we were told that “we do periodic reviews of the guidance but we also keep it up-to-date on a case-by-case basis where that is necessary … we work with other Departments, including BEIS, very closely on this”.49

30.However, we heard from the Landscape Institute that “there is an urgent need to update and expand on the current guidance as decisions are being made based on inadequate and outdated advice”.50 Kate Gordon from Friends of the Earth concurred, telling us that “the guidance is pretty out-of-date. Some of it dates back to 2013 and 2014”.51 She told us that “things have moved on” since the publication of one of the most important planning guidance documents, the Minerals section of the NPPG, which has not been updated (with the exception of one paragraph) since March 2014, and that it is now “quite old and out of date”.52 INEOS also raised specific concerns about the NPPG, stating that it “does not contain the full extent of guidance available in current Written Ministerial Statements and other non-planning guidance documents”.53

31.Kia Trainor from CPRE Sussex drew particular attention to a reference in the NPPG to the 2013 Annual Energy Statement.54 She explained that:

[It] is one of the key considerations that the officer has. That energy statement is very old. It needs updating, particularly in light of… our climate change commitments and the Government commitment to clean growth and the 25-year environment plan. This is really outdated guidance to be using.55

32.Andrew Mullaney from LCC identified the 2014 Public Health England report as a key document that requires updating:

A lot of the questions that are raised in fracking relate to public health… We get a lot of opposition groups all the time saying there has been this report and that report. If that Public Health England report was updated and in turn that underpinned some revised Government guidance on planning, public health and fracking, that would be helpful. I do not envisage it being War and Peace, but even just a paragraph or two in the revised, possibly online planning guidance would be helpful.56

33.It is also unclear how the Government reviews and takes account of new research in its guidance. For example, a recent report by Professor Peter Styles found that there is a higher risk of seismic activity if fracking is taking place in former coal mining areas as fracking could “reactivate” old or unknown faults lines.57 When we questioned the Government on whether MPAs should take its findings into account, we were told that “there may always be academic debate but we should be very careful to single out any particular report and prejudice any individual application on that basis because we have had the world’s best scientists reviewing this industry for many years”.58 However, as we note below, there would seem to be merit in ensuring that there is flexibility in the Government’s approach to take account of such scientific and other developments, where appropriate. We also believe that the Government should assess the implications for existing fracking guidance of Professor Peter Styles’ report, entitled Fracking and Historic Coal Mining: Their relationship and should they coincide?

34.Andrew Mullaney from LCC told us about the impact of out-of-date guidance on MPAs: “at the moment, there seems to be silence, which is filled by opposition groups pointing to studies X, Y and Z in America or whatever. Being a planner dealing with that feels quite isolating”.59 Sally Gill from NCC explained that it is “very important, if there is new information that becomes available relating to shale gas, that any guidance or documentation is updated”.60 She called on the Government to “build in a mechanism to review and update, so that when we are making decisions we know we have the up-to-date list of information to look at”.61

35.The question of how the guidance used in the determination of fracking planning applications is updated is of particular importance as existing exploration sites move towards production and the cumulative impact of fracking becomes more apparent. While Matt Lambert from Cuadrilla told us that “an exploration site and a production site could be very similar. You would not have to have a larger physical footprint to have a production site … Exploration sites can become production sites. That is part of the process”,62 he acknowledged that there are potential issues when it comes to production such as increased transport levels that would need to be assessed in the planning process.63 Ken Cronin from UK Onshore Oil and Gas (UKOOG) agreed that “as we move from exploration to production, there will be more wells on the site and bigger impacts in terms of land use planning. Again, the system is there and it is designed to take account of that through the processes that already exist”.64

36.Notwithstanding the above concerns about inaccurate guidance and the process for updating guidance, the Government announced its intention to revise the NPPG in the 2018 WMS.65 The revision will ensure “clarity on issues such as cumulative impact, local plan making and confirmation that planners can rely on the advice of regulatory experts”.66 The process for agreeing the revised NPPG is unclear; it is unknown whether it will be subject to public consultation. We heard concerns that “there appears to be an increasing move towards updates happening with no consultation”.67 This view was shared by South Hambleton Shale Gas Advisory Group who said that the existing Government guidance had been “unfounded on proper consultation”.68

37.We welcome the Government’s announcement that the National Planning Practice Guidance will be revised following the proposed changes to the National Planning Policy Framework. However, a number of other guidance documents are out-of-date. There does not appear to be a clear process for incorporating scientific and technological developments. The Government should clarify the process by which scientific and technological developments, as well as practical experience at fracking sites, are reviewed and, if appropriate, incorporated into existing guidance, particularly as fracking developments move towards production and the cumulative effect of fracking materialises further.

38.The Government must hold a public consultation on changes to the sections regarding fracking in the National Planning Practice Guidance to ensure public confidence in the decision-making process for fracking developments.


7 Ms Estelle Dehon (Cornerstone Barristers) (PGF0194)

8 Q54

9 Dr Sylvia Bernard (PGF0040)

10 Friends of the Earth England, Wales and Northern Ireland (PGF0183); Ms Estelle Dehon (Cornerstone Barristers) (PGF0194). See also Brockham Oil Watch (PGF0142), Q54 and Q58.

11 Food & Water Europe / Food & Water Watch (PGF0165)

12 Food & Water Europe / Food & Water Watch (PGF0165). See also Weald Action Group (PGF0181).

13 Mobbs’ Environmental Investigations and Research (PGF0177). See also Friends of the Earth England, Wales and Northern Ireland (PGF0183).

14 Friends of the Earth England, Wales and Northern Ireland (PGF0183). See also Q58.

15 Please note that the definition in the Petroleum Licensing (Exploration and Production) (Amendment) (Landward Areas) (England and Wales) Regulations 2016 is slightly more stringent than the definition in the Infrastructure Act 2015 as acknowledged by the Department for Business, Energy and Industrial Strategy (PGF0218).

16 Ms Estelle Dehon (Cornerstone Barristers) (PGF0194)

18 Emphasis added.

19 Ms Estelle Dehon (Cornerstone Barristers) (PGF0194); Para 130, Minerals guidance, NPPG

20 Surrey County Council – officers (PGF0124); Q77

21 Surrey County Council – officers (PGF0124)

31 Q146. See also Q148.

32 HCWS689, 17 May 2018

35 North Somerset Council (PGF0024)

37 Q15. See also Q3, Q14 and Q17.

46 Environmental Audit Committee, Eighth Report of Session 2014–15, Environmental risks of fracking, HC856

47 CPRE Sussex (PGF0077)

50 Landscape Institute (PGF0126)

53 Turley on behalf of INEOS Upstream Ltd (PGF0163)

54 Para 124, Minerals Planning Guidance, National Planning Practice Guidance

57 Professor Emeritus Peter Styles, Fracking and Historic Coal Mining: Their relationship and should they coincide?

65 HCWS689, 17 May 2018

66 HCWS689, 17 May 2018

67 Friends of the Earth England, Wales and Northern Ireland (PGF0183)

68 South Hambleton Shale Gas Advisory Group (PGF0044). See also Frack Free Southport (PGF0092).




Published: 5 July 2018