Policy Briefing: Ministerial statement aims to help fracking applications

Ministers are instructing local authorities to act fast on fracking applications or face surrendering control, explains Catherine Howard.

Secretary of state for energy and climate change Amber Rudd
Secretary of state for energy and climate change Amber Rudd

Q What is the government’s policy stance on fracking?

A A joint statement on shale gas and oil policy released last month by communities secretary Greg Clark and energy secretary Amber Rudd establishes a national need to explore the UK’s shale gas and oil resources that must be taken into account in determining relevant planning applications. It also outlines a number of specific ways in which the government will intervene to help determine such applications.

Q What measures will be imposed to speed the planning system?

A The statement contains a strong reminder to councils that they should determine shale applications within statutory timeframes. Councils that repeatedly fail to meet deadlines will be identified by the government, it says, warning that ministers may take over the determination of shale gas applications made to these authorities in future.

Even authorities that do not miss the deadline could see shale applications taken out of their hands: the statement includes a commitment to consider on an active, case-by-case basis whether to call in applications. Planning appeals against refusal or non-determination will be treated as a priority by government and the secretary of state will consider recovering any shale gas appeal.

Q How are the new measures likely to affect planning decisions and appeals?

A The measures could increase pressure on authorities to ensure that decisions are made on time, to avoid the risk of them being taken out of their hands. It remains to be seen how and when the secretary of state will identify local authorities deemed to be repeatedly failing to meet statutory timeframes, however.

It is also unclear at what stage the secretary of state might call in applications. The power to do so is generally employed after a resolution to grant permission. However, in the case of shale gas applications it must be assumed that this power will be used either as soon as applications are made – to ensure that the most time is saved – or at the point where there is a resolution to refuse. Early call-in would mean that planning inspectors effectively perform the role of local authority case officers.

Q How important are the changes around permitted development?

A Alongside the release of the policy statement, the government also confirmed its intention to amend permitted development rights to allow the drilling of boreholes for groundwater monitoring without an application.

It is also inviting views on proposals for further permitted development rights allowing the drilling of boreholes for seismic investigation. This right will enable baseline information to be obtained on the groundwater environment in advance of, or alongside, any planning application being made for such development. The duty to carry out 12 months’ baseline groundwater monitoring before fracking is a requirement under the Infrastructure Act 2015. The introduction of this right is another way in which the government is seeking to ensure that exploration occurs without delay.

Q What else is the government doing to ease consents?

A Oil and gas is owned by the Crown in the UK and licensed in blocks through periodic licensing awards. It is no coincidence that the ministerial statement on planning came days before the announcement that 27 onshore blocks would be awarded following the Department of Energy and Climate Change’s 14th licensing round.

Delays in the planning process have been one of the key stumbling blocks for shale gas operators in the UK. Earlier this summer, the refusal by Lancashire County Council of applications from Cuadrilla Resources for two of the first shale gas exploration sites in the UK damaged the industry’s confidence. This policy statement is clearly an attempt to signal a more interventionist approach on the part of the government. How significantly this will affect timescales, however, remains to be seen.

Catherine Howard is a planning partner at international law firm Herbert Smith Freehills

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