Will new measures ease the way for shale gas developers?

Experts have mixed views on the likely practical implications of government moves to ease planning procedures for proponents of shale gas exploration and production.

Moves to speed up consent for fracking applications include proposals to include them in the NSIP regime
Moves to speed up consent for fracking applications include proposals to include them in the NSIP regime

More than a year after they were trailed in the Conservative Party’s 2017 general election manifesto, the government has outlined a range of measures intended to make it easier for shale gas companies to win consent for their operations. A joint written ministerial statement issued last month by business secretary Greg Clark and housing secretary James Brokenshire said the move is being made because "recent decisions on shale exploration planning applications remain disappointingly slow" against a statutory timeframe of 16 weeks for cases where an environmental impact assessment (EIA) is required.

The government says it will consult in the summer on the principle of whether applications for exploratory shale gas works should be treated as permitted development. Stuart Andrews, head of planning at law firm Eversheds Sutherland, said anything to make the process easier is to be welcomed. But he added: "With only a handful of exceptions, because of other governance guidance, shale gas exploration has to be treated as requiring EIA. At the moment, legislation does not allow permitted development on EIA developments."

The statement also promised to consult shortly on including shale production projects in the nationally significant infrastructure project (NSIP) regime. "Some local authorities may welcome the suggestion, given the political pressures they have often faced locally," said Catherine Howard, a partner at law firm Herbert Smith Freehills. Adam Brown, senior associate in energy, transport and infrastructure at lawyers Dentons, said it could take a "year or two" to consult and legislate on the proposal. Shale gas companies might not necessarily chose this route anyway, said Brown. "Developers might decide that, although they might be slightly surer of getting a permission, they will have to wait longer for the decision via NSIP."

Howard noted that the ministerial statement makes clear that the government does not support blanket restrictions on shale gas development through local plans. She cited the emerging joint minerals and waste plan for North Yorkshire, which proposes a 500-metre "buffer zone" around housing. The shale gas sector argues that this is legally unsound, she pointed out. "The statement takes the government’s position beyond doubt. It ENERGYmakes clear that decisions on shale gas application must be made on a site-by-site basis."

Accompanying these measures, the government has promised a £1.6 million fund over the next two years to help councils build capacity to deal with fracking applications. In addition, it aims to create a "planning brokerage service" offering advice to help speed up applications, and promises to work with the industry to improve compensation payments to affected communities. "In a last-ditch attempt to boost the fracking industry, the government is trying a mixture of carrot and stick," said Daniel Carey-Dawes, senior infrastructure campaigner at lobby group the Campaign to Protect Rural England. "If this all goes ahead, it will give fracking companies encouragement to put forward more applications."

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