Planning guidance on fracking Contents

4Weight of guidance

48.In the determination of fracking planning applications, we heard that there is a lack of clarity about what weight different pieces of guidance should be given by MPAs. Nottinghamshire County Council stated:

There is no steer on how Minerals Planning Authorities should deal with shale gas applications, specifically the weight that should be given to them, other than the general statement at the start of Paragraph 144 [of the NPPF] … Additional guidance in this regard within the NPPF would be beneficial.88

49.As we detailed in greater depth in Chapter 2, there is particular confusion about the status of different aspects of Government policy and guidance in the planning process. Andrew Mullaney from LCC told us:

It is quite a fragmented policy landscape at the moment, with written ministerial statements, the NPPF and online national planning guidance… The question is, as I said before, and having just gone through a public inquiry on this, about which trumps the other. Which carries more weight? Which is the statement of Government policy?

… There seems to be some inconsistency between, on the one hand, what I would call the climate change ambitions of national policy and, on the other hand, the importance that is attached to shale gas. For example, the written ministerial statement says there is a need for gas and it is important but, on the other hand, we have things like the Clean Growth Strategy. As a planner, I am left wondering where we go with this. On the one hand, we seem to be asked to reduce CO2 but, on the other, this need for gas obviously results in CO2 emissions.89

50.Nicola Howarth from the Peak District National Park Authority told us that the weight of the guidance is for the decision-maker and should be decided on a case-by-case basis.90 Cheshire West and Chester Council concurred:

The Council consider the Government guidance to be a material consideration but only guidance, not statute or policy. It is considered that the weight it is to be given when determining a planning application is for the decision maker to decide.91

51.We heard from Richard Flinton from NYCC that the national guidance should be used to require MPAs to look at the benefits of mineral extraction but that local policies should be used to consider how such development can take place in a balanced way within local communities.92 This view was reflected by the Government which told us that “we have a localised system within a national framework in the NPPF”.93

52.The Government told us “the question of balance is so important”94 and that the “balance is right” at the moment, though “the NPPF and the guidance that follows will look to make sure it is optimised”.95 Nonetheless, there have been suggestions that greater weight be given to the Government’s support of fracking in certain circumstances. The Landscape Institute stated:

The status, in planning terms, of the extant Government guidance, and the weight it can be given at planning inquiries, is lower than it needs to be… the greatest weight is given to development plan policies which, in the case of fracking, will be policies in an adopted local minerals and waste plan … However, where the development plan is absent, silent or the relevant policies are out of date, an application should be determined in accordance with NPPF principles unless otherwise specified.96

53.While the primary consideration for Mineral Planning Authorities must be Local Plans, the status of the various guidance documents in the planning process is not always clear to Mineral Planning Authorities. Notwithstanding our earlier recommendation for the Government to consolidate its position on fracking in the revised National Planning Policy Framework, particularly in regard to how it fits with the UK’s climate change commitments, we are content that Mineral Planning Authorities are currently finding an appropriate balance between national and local policy and guidance in the determination of fracking planning applications.

Local plans

54.However, despite the Government stating that it believes the balance between national support of shale gas and oil and local input is right,97 the Government has raised questions about the extent to which MPAs are able to adapt their Local Plans to local circumstances. Given that MPAs are legally obliged to determine planning applications in accordance with the development plan unless other material considerations indicate otherwise under the Planning and Compulsory Purchase Act 2004,98 this could have a considerable impact on fracking planning applications. The 2018 WMS on fracking planning policy stated that:

Mineral Plans should reflect that minerals resources can only be worked where they are found, and applications must be assessed on a site by site basis and having regard to their context. Plans should not set restrictions or thresholds across their plan area that limit shale development without proper justification.99 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. In addition, these matters are described in Planning Practice Guidance, which Plans must have due regard to. Consistent with this Planning Practice Guidance, policies should avoid undue sterilisation of mineral resources (including shale gas).100

55.This statement is of particular relevance to North Yorkshire County Council, City of York Council and the North York Moors National Park Authority, whose Joint Minerals and Waste Plan is currently under consideration by the Planning Inspectorate. According to Richard Flinton from NYCC, the Joint Plan had been an opportunity to “shape our policies to suit our place”.101 He described the ability to interpret the balance locally as of “vital importance”.102 The plan proposes a series of measures in regard to fracking planning applications that are unprecedented in the UK. For example, the draft plan imposes a setback distance for all fracking sites of at least 500m from homes unless the impacts can be adequately mitigated on a case-by-case basis.103 It also explicitly, and understandably, references the definition of fracking in the Minerals section of the NPPG (see Chapter 2 for our more detailed comment on the planning definition of fracking). Richard Flinton told us:

We pulled together that suite of measures, which we believe enables the industry to take place, is in line with recognising the value of mineral extraction, tempers the level that the industry will reach in order to enable those other qualities of life but also factors local existing jobs taking place. It was a matter of carving out our own way. In doing so, we looked at other planning issues relating to other industries, other factors and other issues of noise, transport, et cetera, and we brought those to bear in relation to this particular issue and, as I say, related it to our place. That is the importance of local government having a role in determining planning applications and pulling together local plans.104

56.During the recent examination, the Planning Inspector indicated that she was minded to accept the definition and most of the proposed restrictions.105 The 2018 WMS, however, suggests that the Secretary of State may disagree, which could result in the Secretary of State using his power to intervene in a local plan process under the Planning and Compulsory Purchase Act 2004.106

57.It is also unclear how the 2018 WMS sits with the Localism Act 2011, which aimed “to give local planning authorities greater freedom to get on with this important job [developing local plans] without undue interference from central government”.107 As we comment on in greater detail in Chapter 6, we heard the MPAs have significant local knowledge and expertise which means that they are best placed to determine planning applications and Local Plans.

58.When we asked the Government to clarify the meaning of the WMS section in paragraph 54 above, particularly in regard to what was meant by “proper justification”,108 we were told “we cannot legally-certainly not as a planning minister-comment on any actual cases … I am sorry we cannot give you more detail… again, I am not going to set out generalisations”.109 We are disappointed with the Minister’s refusal to answer our questions. Claiming that the Minister cannot respond to our questions because he cannot answer hypothetical cases or comment on specific cases is incongruous given that the questions referred directly to a Government statement on fracking planning policy.110

59.There is a contradiction between the spirit of the Localism Act 2011 and the 2018 Written Ministerial Statement on fracking planning policy which could unreasonably restrict Local Plans. Mineral Planning Authorities are best placed to understand their local area and weigh up what requirements should be in place for fracking developments. We note that Local Plans are already subject to scrutiny at national level from the Planning Inspectorate. Given that the English planning system is plan-led, Mineral Planning Authorities should be free to adapt their Local Plans as they see fit as long as they do not arbitrarily restrict fracking developments. It is essential that Mineral Planning Authorities have the right to put conditions in their Local Plans which can be justified having proper regard to local circumstances.

88 Nottinghamshire County Council (PGF0139)

91 Cheshire West and Chester Council (PGF0031)

96 Landscape Institute (PGF0126)

99 Emphasis added.

100 HCWS689, 17 May 2018

106 Section 21a, Planning and Compulsory Purchase Act 2004 (inserted by section 145(5) of the Housing and Planning Act 2016)

107 Department for Communities and Local Government, A plain English guide to the Localism Act, November 2011.

Published: 5 July 2018