Earlier this year, the high-profile refusal of two fracking applications by a county council prompted debate over whether the planning rules for determining such applications are fit for purpose. Ministers have wasted no time since then in taking steps to speed up the system. A policy statement, jointly published by the Department of Energy and Climate Change and the Department for Communities and Local Government last week – less than two months after energy firm Cuadrilla’s Lancashire applications were turned down – is intended to fast-track such applications, the two departments said.
The policy statement begins by stating that there is a "national need" to explore and develop shale gas and oil resources. "This statement should be taken into account in planning decisions and plan-making," it says.
The statement goes on to set out a series of measures intending to ensure that shale gas applications are fast-tracked. Appeals against any refusal of planning permission for shale gas applications, or against non-determination, will be "treated as a priority for urgent resolution", it says. The statement adds that the communities secretary "may also want to give particular scrutiny to these appeals" and will revise criteria to enable him to consider recovering appeals for exploring and developing shale gas.
Meanwhile, the policy statement says the secretary of state will also "actively consider" calling in shale gas applications. It adds that the government will take steps to identify local authorities that "repeatedly" fail to determine oil and gas applications within the statutory timeframe of 16 weeks where an application is subject to an environmental impact assessment. "When such applications are made to underperforming local planning authorities, the secretary of state will consider whether he should determine the application instead," the statement says.
Planning understands that the threat of intervention is separate to the existing special measures regime and that there are currently no plans to publish criteria setting out how the government will identify councils that have "repeatedly" failed to decide shale applications on time, with the decision likely to be made at ministers' discretion.
The policy statement has been criticised by environmental groups and local authorities. Charity Friends of the Earth warned that "bulldozing" fracking applications through the planning system, against the wishes of local people and councils, "will simply fan the flames of mistrust and opposition". John Wilkinson, chairman of the planning and licensing committee at Nottinghamshire County Council, added that the tone of the government’s statement "is very disappointing and appears to be a threat to local democracy and decision-making".
Are they right to be concerned? The measures set out in the policy statement may seem at first glance to represent the government getting tough with local authorities in order to fast-track fracking, but experts have raised questions over how much the measures will actually change the status quo. Matthew Sheppard, director and head of environmental impact assessment at consultancy Turley, said he is "struggling to see what practical difference" the set of measures would make.
Sheppard said the secretary of state already has the power to call in applications where matters of significant national importance are involved. "It’s more of a marker for industry than for us as planning professionals," he said. Similarly, Sheppard said existing criteria for the recovery of appeals, which allow the secretary of state to consider recovering appeals involving proposals for developments of major importance that have more than local significance and proposals giving rise to substantial regional or national controversy, arguably already give scope to recover shale gas appeals.
Claire Dutch, a partner at law firm Hogan Lovells, questioned the likely impact of the measure that will allow the secretary of state to intervene where a council has been too slow in deciding shale gas applications, as she believes that there are not going to be many authorities that are "inundated with shale applications". For the measure to work, she said, a local authority has to have received a sufficient number of fracking applications for the government to be able to demonstrate that it has "repeatedly" failed to determine these on time. "I’m not certain that there’s going to be any particular authority with lots and lots of applications," said Dutch.
However, both Sheppard and Dutch agreed that the policy statement’s clear expression of need will be useful for shale gas applicants. "It’s a statement of intent from the start," said Sheppard. Dutch added that it is "firmly nailing the government’s colours to the mast". She said: "The language it uses is very much in support of shale gas." Further mooted changes to permitted development rights – including a proposal to extend the duration of a permitted development right for the drilling of boreholes for groundwater monitoring from six to 24 months – should also prove helpful for applicants, Dutch said.
Wilkinson acknowledged that "there is really nothing new in terms of extra powers or instructions" announced in the policy statement, but warned that too great a focus on the speed of decisions could have negative impacts. "Planning decisions can have an impact on local communities for many years to come and, while it's in nobody's interest for unnecessary delays, proper compilation of and consideration of all relevant evidence is essential," he said. "It's more important for all concerned that correct decisions are taken, rather than simply focusing on the speed of the decision."
Furthermore, experts said there are instances where applicants are comfortable with local authorities taking longer than statutory timeframes to decide their applications. Sarah Bischoff, associate at law firm Norton Rose Fulbright, explained that developers routinely agree extensions to the statutory determination period with local authorities, such as through planning performance agreements, to "allow both parties to resolve particular issues that arise". She said: "This is more often than not in a developer’s best interest, as it is often possible to negotiate away objections, and ultimately a refusal, by producing further assessment work, agreeing to further mitigation to reduce unacceptable impacts or conceding minor scheme amendments."
Experts were split over whether it is reasonable to expect local authorities to decide potentially contentious shale gas applications within 16 weeks. "This depends on each application, but given the intense public scrutiny in respect of planning applications for fracking, and the planning considerations each application will raise, 16 weeks is tight, particularly for cash- and resource-poor authorities," said Bischoff.
But Dutch said it should be possible for authorities to decide shale applications within 16 weeks. She said: "If a developer submits a full, well-presented environmental statement, the local planning authority has consulted the Environment Agency and the Health and Safety Executive and there are no red flags in the environmental statement, I would have thought that a local authority should have been able to come to a view in four months." Sheppard added that he "doesn’t see any reason" why councils could not deal with shale gas applications within 16 weeks. "In theory, I don’t see why they shouldn’t be able to do it, it’s no different from any other major planning application," he said.