Shale gas update – Lexology

New planning guidance for sensitive areas

Planning permission is required for most aspects of shale development other than initial survey work. Our Shale: Review of 2013 earlier this year highlighted the Government’s efforts to stimulate UK shale development through planning, tax and business rates reforms, as well as the Regulatory Roadmap for onshore oil and gas. The Government has now sought to address environmental concerns about permissions for shale development by coordinating publication of the new PEDL criteria and terms as discussed in our previous Shale Gas Update, with further Planning Policy Guidance on development in Areas of Outstanding Natural Beauty (AONB), National Parks and World Heritage Sites (WHS).

We commented on the impact of the Planning Practice Guidance (PPG) when it was originally published in July last year.  The revised ‘Planning for hydrocarbon extraction’ PPG now published by the Department for Communities and Local Government is intended to give comfort to those concerned about the effects of development in AONB, National Parks and WHS. The new guidance requires an exceptional case for (and a public interest in) allowing unconventional hydrocarbon development in these sensitive areas where it is classified as ‘major development’.

Policies continue to support shale development

The new Guidance is already being described as making unconventional exploration in National Parks, AONB and WHS more difficult (or prohibiting it in these areas other than in exceptional – or in the case of WHS, wholly exceptional – circumstances).  That is wrong –  the PPG in fact restates what is already in the National Planning Policy Framework (paragraphs 116 and 133) on development in sensitive areas. The requirement for an exceptional case and a public interest only applies where it is ‘major development’.

Mineral Planning Authorities, who will take the decisions on shale development in the first instance, will need to be clear about the correct application of the policy and the guidance on it:

the Guidance cannot, legally, add anything to the NPPF policies. A plain reading confirms it does not try to. The written Statement to Parliament summarises the approach as simply “recognis[ing] there are areas of outstanding landscape and scenic beauty where the environmental and heritage qualities need to be carefully balanced against the benefits of oil and gas from unconventional hydrocarbons“.

the PPG does not say whether fracking is ‘major development’, which is sensible because ‘major development’ is not a precise term. It must flow from a planning judgment about scale and impacts.

the PPG emphasises the importance to be attached to onshore exploration in the Government’s Annual Energy Strategy.  The Government has been clear about the national significance of onshore unconventionals and the House of Lords Economic Affairs Committee called for more to be done to achieve it in May this year.

Political signposts

Nonetheless, the written Ministerial statement to the House of Lords accompanying the PPG makes it clear there will be enhanced oversight of planning appeals on these points in these sensitive areas – the Secretary of State for Communities and Local Government is likely to recover appeals for his own consideration where local authorities refuse permission.  The new Guidance is therefore a political marker that there will be careful scrutiny of effects, mitigation and the balance of benefits by a political decision maker, particularly in the run up to the next election.   Shale developers in sensitive areas will need to show that the intended surface access site is both the best available alternative and is as well designed and mitigated as it can be. Robust input from transportation, landscape design and noise advisors will be critical to credibly demonstrating it.

Special case?

via Shale gas update – Lexology.