Planning guidance on fracking Contents

6Changes to the planning regime


69.During this inquiry, we wanted to explore whether fracking planning applications should be dealt with under a national regime, specifically as nationally significant infrastructure projects (NSIPs) under the Planning Act 2008.130 In this chapter, we consider the advantages and disadvantages of the NSIP regime, and whether it will solve some of the perceived inadequacies of the existing planning regime. We also consider whether non-hydraulic fracturing exploration should be reclassed as permitted development.

Nationally Significant Infrastructure Project regime

70.In 2016, a leaked letter from the then Secretaries of State for Energy and Climate Change, Communities and Local Government and Environment, Food and Rural Affairs to the Chancellor stated that they were “minded to bring commercial shale production within the Nationally Significant Infrastructure planning regime and to be ready to begin the move from early 2016 for large scale applications”.131 While this timetable was not met, the Government announced its commitment to such a course of action in its 2017 General Election Manifesto, which stated that “where necessary, major shale planning decisions will be made the responsibility of the National Planning Regime”.132 The Government set in motion this manifesto promise by announcing its intention to consult in summer 2018 on the criteria required “to trigger the inclusion of shale production projects into the Nationally Significant Infrastructure Projects regime” in its 2018 WMS.133 The 2018 WMS stated that the Government want a “decision-making regime that meets the future needs of the sector.”134 The Government clarified to us that it wanted a planning regime for fracking that balances national and local need.135

71.We were told that one of the key benefits of bringing fracking production planning applications under the NSIP regime is greater certainty over the timescale of planning applications.136 Once an NSIP application is formally accepted by the National Infrastructure Planning Unit at the Planning Inspectorate, it takes approximately 12–15 months until development consent is granted or refused.137 Planning applications under the current Town and Country Planning Act 1990 should be determined by MPAs within a statutory timeframe of 13 weeks or 16 weeks if the application is subject to an environmental impact assessment.138 While the NSIP process theoretically takes longer than the existing planning regime, the Government described the current regime as “disappointingly slow” and told us that every fracking planning application to date has failed to be determined within the statutory timeframe of 13 or 16 weeks.139 Ken Cronin from UKOOG corroborated that “the process has now gone from an acceptable three or four months to a very unacceptable 18 months.”140 Matt Lambert from Cuadrilla cited planning applications where decisions have taken significantly longer: the Preston New Road application took 28 months to be determined and the Roseacre Wood application is still being considered at appeal stage four years after the planning application was submitted.141

72.UKOOG stated that one of the main reasons for delays was that:

Planning officers are under significant pressure combined with reduced resources. They are under pressure to ensure that the process is legally robust; the significant volume of comments made on each planning application are considered; the high public interest is addressed; and the requirement to consult on new information (of which the definition is not always clear) is processed.142

73.The extent of the delays and the question of whether NSIP would expedite the determination of a fracking planning application have been disputed. Andrew Mullaney from LCC said that “the suggestion that local authorities are somehow dragging their feet or do not have the competencies in speed of determination is wrong”.143 He told us that applications often get held up when applicants submit new information during the course of the determination as it triggers further public consultation under Regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.144 Mullaney explained that during the first five months of the determination of the Preston New Road site, LCC had to use Regulation 22 four times.145 He concluded that these procedural delays would apply equally to fracking planning applications under the NSIP regime.146

74.Brockham Oil Watch also countered claims of delay in stating that:

In most cases, decision making is delayed because of faults in the documentation prepared by oil companies in support their planning applications… If the oil companies decide to continue to fight decisions made against them through the planning appeals process and then through the courts (and that if local residents do the same) the reaching a final decision can take several years; but these cases are exceptional.147

75.In addition to potential procedural delays as a result of new or incorrect information, the NSIP regime is “front-loaded with a number of pre-application consultation requirements, which, depending on the complexity of the project, can take a number of years to carry out”.148

76.Zetland Group Limited contended that a further benefit to industry operators of bringing fracking planning applications under the NSIP regime was that it “could, in theory, offer greater certainty and take the decision away from elected members, mitigating the risk of political non planning based decisions”.149 However, it acknowledged that this would be viewed unfavourably by the general public.150 Indeed, the majority of evidence we received that opposed bringing fracking planning applications under the NSIP regime did so because of the perceived loss of local voices in the decision-making process; it was widely suggested that NSIP would “silence the voices of many local people” and would be viewed as “a deliberate attempt to circumvent democratic involvement”.151 We heard from West Sussex County Council that “the decision-making process for [NSIP] is more removed from the local community than if the application was determined by the LPA [local planning authority]”.152 Frack Free Ryedale noted that the link between local communities and the planning process would be broken, raising further questions about the Government’s commitment to localism and the role of local plans.153

77.We also heard that MPAs are best placed to determine fracking planning applications under the existing planning regime because of their local knowledge. Ann Chapman stated, “local residents and their local representatives best understand their local situation and priorities, and the impact shale gas extraction would have on their local area”.154 The Landscape Institute agreed, arguing that “only local planning authorities have sufficient information to accurately assess cumulative impact at the local scale”.155

78.The Government told us that the NSIP regime would take into account local opinions and expertise:

There are comprehensive legal requirements in place to make sure that the local authorities and local communities can have their say. There is the statement of community engagement, which is a condition before the application can be submitted to the NSIP, at the production stage. There is local community engagement at the examination stage.156

79.Notwithstanding the advantages and disadvantages of bringing fracking planning applications under the NSIP regime, questions were raised about whether fracking development would meet the requirements of the regime. A group of lawyers from Cornerstone Barristers told us:

There is no evidence that future fracking applications for production will reach the thresholds set in the PA [Planning Act] 2008, and the Government’s approach to fracking as a transitional fossil fuel does not compare well with current NSIP projects… for individual fracking projects, even those concerning production, it seems unlikely that there will be an element of national significance”.157

West Sussex Council concurred:

[Fracking] development is not large in physical scale or land take and so is not considered to be nationally-significant by virtue of its size. It also seems unlikely that the contribution of any single site to meeting the UK’s national energy needs will be ‘nationally-significant’ - and if it was judged to be of such significance, it is unclear why the development of large-scale conventional oil and gas sites would not be.158

80.In addition to potentially not meeting the thresholds of national significance, it is unclear whether fracking would qualify as an ‘energy’ project. The National Infrastructure Planning Association told us that this was “partly related to mineral extraction; and it is currently explicitly ruled out from the definition of business/commercial project”.159

81.While the Government did explicitly refer to shale gas as a mineral in its evidence to us,160 it is confident that it can bring the production stage of fracking developments under the NSIP regime:

The Planning Act 2008 gives the Secretary of State powers to make certain amendments by affirmative order without primary legislation; it is our view that this would allow the Secretary of State to move shale gas development into the NSIP regime as a new project within the field of energy using secondary legislation. The Planning Act 2008 refers to matters ‘in the field of energy’, as a matter of ordinary language the term ‘the field of energy’ is broad enough to capture a shale gas fracking project; ‘in the field of’ is a wide concept–not limited to, for example, projects for energy generation. The specific types of energy project referred to in the Act which are not intended to be exhaustive of what is meant by ‘energy’.161

82.There is little to be gained from bringing fracking planning applications at any stage under the NSIP regime; there is limited evidence that it would expedite the application process and such a move is likely to exacerbate existing mistrust between local communities and the fracking industry. We are particularly concerned that if the NSIP regime were adopted, there would be no relationship between fracking applications and Local Plans in communities. Furthermore, we note that the Government has not provided any justification or evidence for why fracking has been singled out to be included in a national planning regime in contrast to general mineral applications.

83.Fracking planning applications should not be brought under the NSIP regime. While we note that the NSIP regime does provide opportunities for consultation with Mineral Planning Authorities and local communities, such a move could be perceived as a significant loss to local decision-making. Mineral Planning Authorities are best placed to understand their local area and consider how fracking can best take place in their local communities.

84.Despite our recommendation above and the overwhelming evidence we received, if NSIP were to be used for fracking applications, it is essential that a National Policy Statement is prepared as a matter of urgency that would include suitable measures to restrict inappropriate proliferation of well-pads and unacceptable impacts on landscapes. We consider that the North Yorkshire Draft Joint Minerals and Waste Plan offers an appropriate template for such guidance. While we note that the Government stated that the issue of cumulative impact “would be addressed on a case by case basis as part of the NSIP examination process,”162 the National Policy Statement should ensure that it is considered automatically as part of every determination. Every decision should also be consistent with Local Plans.

Permitted development

85.In the 2018 WMS, the Government announced its intention to consult “on the principle of whether non-hydraulic fracturing shale exploration development should be treated as permitted development, and in particular on the circumstances in which this might be appropriate”.163 This announcement followed a commitment in the Government’s 2017 election manifesto.164 The Government told us that treating non-hydraulic fracking shale exploration development as a permitted development would “speed up” the process and would be welcomed by former coal-mining communities who see it as an opportunity to create high-value jobs. It is unclear what the Government means by the statement ‘non-hydraulic fracturing shale exploration development’ and there are concerns that this might allow operators to build well-pads in any location they deemed suitable without due process or consideration of impacts.165

86.As the 2018 WMS was published at the end of the evidence gathering stage of our inquiry, we were unable to ask witnesses about whether such a change in the planning regime would be welcomed, and received limited written evidence on the topic. Nevertheless, despite the Government asking us why would local authorities not “want to go through that process to see if there is a valuable resource that could benefit their local communities both in terms of jobs and economic impact”, concerns were raised that a permitted development regime (PDR) for non-hydraulic fracturing would be inappropriate.

87.Mirroring concerns about bringing fracking planning applications under the NSIP regime, Professor Michael Bradshaw and colleagues told us:

[The] consideration of planning applications for shale gas related activities should remain with the local authority. Given the high level of attention and concern attached to shale gas related decisions, if people regard the planning decision as a case of central government imposing their will on locals then the decision will be considered less legitimate and opposition to/lack of acceptance of decisions will increase.166

88.We also heard that PDR would result in reduced scrutiny of the industry.167 Frack Free Ryedale and Frack Free Warsop suggested that the cumulative impact of a high number of drill pads under PDR would be of concern.168

89.The Government told us:

There are still opportunities for local consultation and local buy-in, particularly if you have a prior condition as part of that process … Where permitted development rights are already established, there is often a prior approval process and that can be set out as a condition to many of the permitted development rights. That is one of the key aspects that we want to look at to give those that share those concerns some reassurance.169

90.The Government also noted that developments that require an environmental impact assessment cannot be subject to permitted development, and that local authorities “have the power to remove those permitted rights even when a consultation with the EA is not required under certain circumstances”.170 Local authorities have the power to remove PDR under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015.171 However, we note that “while article 4 directions are confirmed by local planning authorities, the Secretary of State must be notified, and has wide powers to modify or cancel most article 4 directions at any point.”172 Planning authorities may also be held liable to pay compensation to those whose permitted development rights have been withdrawn.173

91.Shale gas development of any type should not be classed as a permitted development. Given the contentious nature of fracking, local communities should be able to have a say in whether this type of development takes place, particularly as concerns about the construction, locations and cumulative impact of drill pads are yet to be assuaged by the Government.

Local authority resources

Shale support fund

92.Questions have arisen about whether local authorities are adequately resourced to process fracking planning applications. NCC stated that fracking planning applications are “extremely demanding on Council resources”.174 Sally Gill from NCC elaborated:

While shale gas applications are minerals planning applications, and that is what we do, the interest relating to shale gas applications and the amount of time we have had to all spend on these applications far outweigh the time we would have spent on an application for sand and gravel extraction and things. They are very resource-hungry applications for us to deal with.175

93.Cuadrilla called for the Government to consider use of the NSIP regime in light of the question of “whether local authorities have the resources and the political will to process more complex applications for the production operations which will likely follow if current exploration operations are successful”.176

94.The Government recognises that “shale applications and the planning process can be complex for local authorities” and announced the launch of “a new £1.6 million shale support fund over the next few years to build capacity and capability”.177 Richard Flinton from NYCC, which received MHCLG funding from a previous 2017–18 shale exploration funding stream worth £1.2 million, told us that it does not cover the actual costs:

The application that I have described in North Yorkshire cost over £500,000 in terms of the burden to the council and we received some funding help from the Government, which amounted to in the region of £170,000, so there is a considerable balance to be met by the council.178

95.Sally Gill from Nottinghamshire County Council explained that financial pressures were not confined to the planning department:

We were successful in obtaining some funding from DCLG, which was welcomed, but in dealing with these applications, when the applications were coming to committee the whole of the authority was involved; it was not just my team and the planning and licensing committee; it was my colleagues in the emergency planning and my legal colleagues. It was not just a burden on my planning finances; it was a burden on the local authority’s finances.179

96.Andrew Mullaney from Lancashire County Council went on to say that it is not just during the determination process that local authorities are under-resourced:

It is “post-decision as well, in in terms of the monitoring and enforcement of sites. At the peak, if something at the site is happening—say, for example, the fracking rigs are being brought on, which they will be at some point in the summer—I am expecting our complaints to go through the roof and us to have to deal with those. Whether they are actual complaints or how significant they are, nevertheless all have to be investigated.180

97.Notwithstanding concerns above that this funding does not cover the true cost for MPAs, Nicola Howarth from the Peak District National Park Authority called for the fund to be “available on an ongoing basis from the Government. There was a deadline to submit your application for the bid and I think it was available on a first come, first served basis, which I do not think is helpful”.181

98.It is essential that Mineral Planning Authorities are sufficiently resourced to deal with fracking planning applications. The shale support fund of £1.6 million over two years and the planning brokerage system are to be welcomed though we note that in the previous financial year Mineral Planning Authorities could apply for financial support from a fund of £1.2 million. Furthermore, given that we were told that fracking applications can cost Mineral Planning Authorities more than £500,000, we recommend that the Government raise the cap on funding bids to the shale support fund and increase the funding available. The Government should also consider making the fund more flexible so that Mineral Planning Authorities can react more effectively to fracking planning applications.

Planning brokerage service

99.The Government also announced the creation of a planning brokerage service (PBS) to provide guidance to MPAs and applicants on the planning process “to help facilitate timely decision-making”.182 The Government told us that “this is all about the process, advising both local authority and the developers on the process and how best to engage with it. It does not touch or impinge on the substance of any planning applications”.183

100.While we did not hear specific requests for such a service, we heard calls for capacity-building training to be available for MPAs. Leeds City Council called on the Government to make further provision for local authority training on fracking in order “to build capacity and share experience”.184 The Zetland Group agreed, saying that “planning professionals could be assisted by more training”.185 The Local Government Association said that the Planning Advisory Service (PAS) already offered such training and called on the Government to support this type of support:

In partnership with environmental consultants, they also offer councillor training sessions on handling of planning applications for hydraulic fracturing of shale for mineral planning authorities. The sessions cover the decision making process and supporting information on fracking applications. The LGA fully supports this type of sector-led approach that builds capacity in local planning authorities. We would like further central government funding to be provided to enable this level of support to continue, particularly for those local authorities which have limited experience of processing these types of applications.186

The Government have since told us that it intends to fund PAS to complement the service offered by the PBS.187

101.When we questioned the Government on why such a service would not be made available to the public, we were told that “if you have 36,000 expressions of concern, most of which are not coming from the local area, there is a suggestion that those who want to oppose these developments do not need much more support than they already have.”188 The Government denied that the PBS was being set up in order “to give reasons for people to get around legislation and planning guidance”.189 It told us that it would be “good way of establishing early confidence in the process” among local communities as it will facilitate “better co-ordination between the developer and the local authority in terms of information. This is a way of making sure that information is provided in a timely fashion, by developing potentially a planning performance agreement that obliges both sides to deliver”.190

102.Limiting access to the planning brokerage system to Mineral Planning Authorities and applicants is likely to increase opposition to individual fracking applications, thereby further inhibiting the role of Mineral Planning Authorities. The planning brokerage system should extend its support to members of the public and organisations who wish to participate in the planning process to avoid overburdening Mineral Planning Authorities. In doing this, a more independent and even-handed approach to fracking planning applications would be facilitated. As part of its support to Mineral Planning Authorities, the Government should provide long-term funding to the Planning Advisory Service to ensure continued access to training and support.

103.Pursuant to our earlier recommendation to rename and repurpose the proposed Shale Environmental Regulator, we call on the Government to integrate the planning brokerage system into the Shale Information and Coordination Service, to truly establish “one coherent single face for the public, mineral planning authorities and industry”.191

131 Daily Telegraph, Ministers plot to foil anti-frackers, 20 January 2016

133 HCWS689, 17 May 2018

134 HCWS689, 17 May 2018

136 Q43. See also Cuadrilla Resources Ltd (PGF0159).

139 HCWS689, 17 May 2018

141 We note that the 28 months quoted by Matt Lambert to conclude the Preston New Road planning application includes the appeal stage. Lancashire County Council determined the application in just over 12 months; the application was received on 2 June 2014 and determined on 29 June 2015. Similarly, Lancashire County Council determined the Roseacre Wood planning application in just over a year; the application was received on 17 June 2014 and determined on 26 June 2015.

142 UK Onshore Oil and Gas (PGF0075)

147 Brockham Oil Watch (PGF0142)

149 Zetland Group Limited (PGF0155)

150 Zetland Group Limited (PGF0155)

151 Frack Free Ryedale (PGF0079); Sheffield City Council (PGF0088). See also Margaret Higgins (PGF0004), Mr John Hobson (PGF0005), Frack Free Dudleston (PGF0010), Surrey County Council - officers (PGF0124) and Brockham Oil Watch (PGF0142).

152 West Sussex County Council (PGF0154)

153 Frack Free Ryedale (PGF0079). See also Surrey County Council - officers (PGF0124), Lancashire County Council (PGF0161) and Ms Lynne Blake (PGF0046).

154 Ms Ann Chapman (PGF0151). See also Weald Action Group (PGF0181), Frack Free Ryedale (PGF0079), Keep East Lancashire Frack Free (PGF0003), Cllr Keith Martin (PGF0014) Ms Miranda Cox (PGF0016), Dr Timothy Scott (PGF0019) and Q70.

155 Landscape Institute (PGF0126)

157 Ms Estelle Dehon (Cornerstone Barristers) (PGF0194)

158 West Sussex County Council (PGF0154)

159 National Infrastructure Planning Association (PGF0127)

161 Department for Business, Energy and Industrial Strategy (PGF0218)

162 MHCLG (PGF0216)

163 HCWS689, 17 May 2018

166 Professor Michael Bradshaw (PGF0125)

167 Frack Free Southport (PGF0092)

168 Frack Free Ryedale (PGF0079); Frack Free Warsop (PGF0109)

172 House of Commons Library, Permitted Development Rights (SN00485)

173 Para. 42, When is permission required? National Planning Practice Guidance

174 Nottinghamshire County Council (PGF0139)

176 Cuadrilla Resources Ltd (PGF0159)

177 HCWS689, 17 May 2018

182 HCWS689, 17 May 2018

184 Leeds City Council (PGF0153)

185 Zetland Group Limited (PGF0155)

186 Local Government Association (PGF0147)

187 MHCLG (PGF0216)

191 HCWS689, 17 May 2018

Published: 5 July 2018