Download Planning and shale gas briefing

April 2014
Planning & unconventional oil and gas
In Friends of the Earth’s view unconventional gas exploration, extraction and production is incompatible
with:

Reducing our carbon emissions to levels that reduce climate risks

The precautionary approach to protecting our environment (in particular groundwater)

The need to develop long term sustainable low cost and community owned renewable
energy resources (wind, wave and sun)
What is the regulatory framework?
In England, the land use planning system and the pollution permit system are both part of the regulatory
framework for hydrocarbon minerals developments using unconventional techniques. Legislation and
guidance on planning is overseen by the Department for Communities and Local Government, and
pollution permits are given out by the Environment Agency, covering mining waste, radioactivity, emissions
and groundwater protection, which is associated with the Department for Environment, Food and Rural
Affairs. Other regulation is governed by the Department for Energy and Climate Change in issuing licences
for exploitation of hydrocarbons, and by the Health and Safety Executive, who oversee the design and
construction of wells.
Who is making the decision?
The first tier is the licensing process whereby DECC issue a license for hydrocarbon exploration to a
developer. This developer must then apply for planning permission.
As land-use development decisions are made in England by the council (the upper tier if you are in a two
tier area), democratically elected councillors have an important role to play at local government level.
Friends of the Earth do not think that it is appropriate that these highly contentious decisions are delegated
to officers.
Local planning decisions must have regard to local minerals plans and must take national planning policy
into account, alongside other material considerations.
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Shale gas and planning
Consent for land use development must include the under land activities (Section 55, TCPA 1990). The
Government has updated the online planning practice guidance to make it clear that planning applications
must show the extent of the underground activity1.
Why should climate change be considered when making the decision?
Section 39(2) of the Planning and Compulsory Purchase Act 2004 makes it a statutory duty for authorities
to act with the objective of achieving sustainable development in terms of plans. Section 19(1A) of the
Planning and Compulsory Purchase Act 2004 states: “Development plan documents must (taken as a
whole) include policies designed to secure that the development and use of land in the local planning
authority's area contribute to the mitigation of, and adaptation to, climate change.” Section 1(1) of the
Climate Change Act 2008 provides that it is the duty of the Secretary of State to to ensure that the net UK
carbon account for the year 2050 is at least 80% lower than the 1990 baseline.
According to the National Planning Policy Framework 2012, the planning system “has a key role to plan in
helping shape places to secure radical reductions in greenhouse gas emissions.” (Paragraph 93).
Paragraph 94 the NPPF encourages the development of “proactive strategies to mitigate and adapt to
climate change, taking full account of flood risk, coastal change and water supply and demand
considerations.” As explained further in national planning practice guidance for England: “In addition to
supporting the delivery of appropriately sited green energy, effective spatial planning is an important part of
a successful response to climate change as it can influence the emission of greenhouse gases. In doing so,
local planning authorities should ensure that protecting the local environment is properly considered
alongside the broader issues of protecting the global environment.”2
In addition, local plans will not be found sound unless they tackle climate change proactively: “To be found
sound, Local Plans will need to reflect this principle [addressing climate change] and enable the delivery of
sustainable development in accordance with the policies in the National Planning Policy Framework. These
include the requirements for local authorities to adopt proactive strategies to mitigate and adapt to climate
change in line with the provisions and objectives of the Climate Change Act 2008 and co-operate to deliver
strategic priorities which include climate change.”3
In terms of taking climate change into account in decision-taking, Baroness Hanham, speaking on behalf of
the Government with regard to the Growth and Infrastructure Bill debate in 2013 said: “We want to ensure
that new development is future-proofed against climate change as decisions are made. As far as I am
aware, local authorities would have to take account of climate change where it is relevant under their
planning guidance.” (6 February 2013).
This is further supported when the Secretary of State agreed with the Inspector on the Chat Moss Peat
Works appeal4 that continued work would “be contrary to policies within the Development Plan which seek
to minimise greenhouse gas emissions and to have regard to the need to minimise the impact of
development on climate change. He further agreed with the Inspector that this would also be contrary to
paragraph 93 of the Framework which also seeks to reduce greenhouse gas emissions.” It is therefore
clear that decision-makers must take account of climate change.
The Tyndall Centre’s research into the climate impacts of shale gas exploitation says “while being
promoted as a transition route to a low carbon future, none of the available evidence indicates that this is
likely to be the case.” (January 2011, Shale gas: a provisional assessment of climate change and
1
DLCG, Online Planning Practice Guidance, March 2014, Paragraph: 115 Reference ID: 27-115-20140306
Ibid, Paragraph: 001 Reference ID: 6-001-20140306
3 Ibid, Paragraph: 001 Reference ID: 6-001-20140306
4 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14967/Chat_Moss.pdf
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Shale gas and planning
environmental impacts). In addition UNEP’s 2012 report said: “increased extraction and use of
unconventional gas is likely to be detrimental to efforts to curb climate change”.5
What about the Government’s support for unconventional oil and gas?
The current Government is supportive of unconventional oil and gas development. The planning practice
guidance for England therefore promotes the identification of sites6, and makes it clear that “energy
supplies should come from a variety of sources.”7 However this has to be set against the duty of the local
decision-maker as illustrated above to ensure that their local plan and decisions on applications properly
take into account climate change. While local authorities are directed to consider that energy supplies
should be from a variety of sources, they could well take the position that unconventional oil and gas
requires a precautionary approach that is in line with the need for their local plan to meet climate change
emissions reduction ambitions. This position is supported by the recital to the European Renewable
Directive 2009 which states that planning structures and legislation should “take into account the
contribution of renewable energy sources towards meeting environmental and climate change objectives, in
particular when compared to non-renewable energy installations”8.
Friends of the Earth is of the view that unconventional oil and gas exploration is:
 incompatible with the need to tackle climate change;
 unnecessary given the availability of renewable energy resources;
 incompatible with the precautionary principle;
 incompatible with long term energy security and resilience;
 inconsistent with the principle of enabling communities to own clean and safe sources of renewable
energy.
What is the precautionary principle?
The application of the precautionary principle – for instance to groundwater - means that unless it can be
proven that there will be no groundwater contamination a development should not go ahead.
The National Planning Policy Framework 2012 in its preamble lists the five principles of sustainable
development as set out in the UK 2005 strategy – including using “sound science responsibly”9 which was
further explained at the time of its publication to mean: “Ensuring policy is developed and implemented on
the basis of strong scientific evidence, whilst taking into account scientific uncertainty (through the
precautionary principle) as well as public attitudes and values.”10
Planning practice guidance for England also references the precautionary principle in relation to
Environmental Impact Assessment: “the local planning authority must have regard to the amount of
information available, the precautionary principle and the degree of uncertainty in relation to the
environmental impact.”11
The 1992 Rio Declaration on Environment and Development states that, “where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation”. The Interdepartmental Liaison Group on Risk
UNEP (2012) ‘Gas fracking: can we safely squeeze the rocks?’
Ibid, Paragraph: 108 Reference ID: 27-108-20140306
7 Ibid, Paragraph: 124 Reference ID: 27-124-20140306
8 Recital, Paragraph 42, Renewable Energy Directive 2009
9 Preamble, National Planning Policy Framework 2012
10 Archived: Paragraph A1 to Annex A to PPS 25: The Government’s Aims for Sustainable Development
11 Ibid, Paragraph: 023 Reference ID: 4-023-20140306
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Shale gas and planning
Assessment (ILGRA), in its 2002 paper ‘The Precautionary Principle: Policy and Application’, made a
number of important points including noting that the precautionary principle should be invoked when:
-
there is good reason to believe that harmful effects may occur to human, animal or plant health, or
to the environment; and
-
the level of scientific uncertainty about the consequences or likelihood of the risk is such that best
available scientific advice cannot assess the risk with sufficient confidence to inform decisionmaking.
There is evidence to support the proposition that shale gas extraction carries with it significant risks of
groundwater contamination as for instance covered by the British Geological Society’s paper on this
(Potential groundwater impact from exploitation of shale gas in the UK”, Stuart, 2012). This report
concludes that “Groundwater may be potentially contaminated by extraction of shale gas both from the
constituents of shale gas itself, from the formulation and deep injection of water containing a cocktail of
additives used for hydraulic fracturing and from flowback water which may have a high content of saline
formation water” (page 19). The BGS report further states that “There are examples of surface water
contamination from releases of fracturing water or flowback water. Documented instances of groundwater
contamination from the U.S. are all related to the leakage of methane into groundwater.” (page 20). It is
therefore essential this is properly recognised in plan-making and development decisions.
How does the precautionary principle apply?
The EU Water Framework Directive and environmental law provide for the precautionary principle to be
considered in planning. In addition it is linked to the use of Environmental Impact Assessment.
A summary of the Water Framework Directive is as follows:
The case of groundwater is somewhat different. The presumption in relation to groundwater should
broadly be that it should not be polluted at all. …But for general protection, we have taken another
approach. It is essentially a precautionary one. It comprises a prohibition on direct discharges to
groundwater, and (to cover indirect discharges) a requirement to monitor groundwater bodies so as
to detect changes in chemical composition, and to reverse any anthropogenically induced upward
pollution trend. Taken together, these should ensure the protection of groundwater from all
contamination, according to the principle of minimum anthropogenic impact.
(Water Framework Directive: http://ec.europa.eu/environment/water/waterframework/info/intro_en.htm)
This approach is also reflected in the Groundwater Directive which prohibits the input of “hazardous
substances” into groundwater. This should include methane which shale gas companies are drilling for as
well as the other chemicals used in the unconventional hydraulic fracturing process.
Independent legal advice obtained by Friends of the Earth has pointed out that the quantities of water
which are required to facilities shale gas extraction are significant, and engage the statutory duties of the
Secretary of State, as well as the duties of planning authorities in the NPPF, to conserve and improve the
water supply. This is also reflected in the planning practice guidance on developments that have not been
included in the local plan and are likely to require a large amount of water12 - which states that the
implications should be considered by the local authority.
How are other environmental issues considered in planning?
12
Ibid, Paragraph: 016 Reference ID: 34-016-20140306
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Shale gas and planning
The National Planning Policy Framework 2012 sets out in relation to minerals extraction that local
authorities should (paragraph 143)
“set out environmental criteria, in line with the policies in this Framework, against which planning
applications will be assessed so as to ensure that permitted operations do not have unacceptable
adverse impacts on the natural and historic environment or human health, including from noise, dust,
visual intrusion, traffic, tip- and quarry-slope stability, differential settlement of quarry backfill, mining
subsidence, increased flood risk, impacts on the flow and quantity of surface and groundwater and
migration of contamination from the site; and take into account the cumulative effects of multiple
impacts from individual sites and/or a number of sites in a locality;”
Local evidence from communities and evidence from the environmental impact assessment is key here to
informing the local planning authorities’ assessment of the application. In addition, these issues must be
reflected in any conditions attached to the decision notice.
Under the presumption in favour of ‘sustainable development’ introduced by this Government, local
planning authorities may refuse development if granting permission would have adverse impacts that
significantly and demonstrably outweigh the benefits “when assessed against the policies in this
Framework taken as a whole; or– specific policies in this Framework indicate development should be
restricted.”13 Therefore the local planning authority has to make the case in order to refuse any
development – with as much evidence as possible.
Is an Environmental Impact Assessment required?
Planning practice guidance in England states that “An Environmental Impact Assessment is therefore
required if the project is likely to have significant environmental effects.”14
There is a serious lack of information in the applications that are coming forward and therefore local
authorities should be strongly encouraged to demand an Environmental Impact Assessment (EIA) to
assess impacts on soils, water and air. It is vital for the public interest that risks are properly understood
before decisions are made. The EC studies on unconventional gas has also made specific reference to
cumulative impacts15. The planning practice guidance states: “The local planning authorities should always
have regard to the possible cumulative effects arising from any existing or approved development.”16
What other conditions can a local planning authority set?
The planning authority must ensure that it has sufficient environmental impact information at its disposal in
order to formulate conditions that protect the public and the environment.
These should cover water, soils, air emissions, traffic movements, noise, dust, lighting and aftercare and
restoration. It is vital, given the unconventional nature of the technology, that liability and risk are fully
catered for financially as well as through conditions.
The Decision Notice is a key document in controlling what has actually been given permission. If these are
vague then it becomes difficult to enforce or to be clear about what development is and isn’t permitted.
What should the planning application look like?
The planning application should include a red line site boundary for the development. Friends of the Earth
have argued that Section 55 of the Town and Country Planning Act 1990 clearly says that development
means “underland” activities. The Government planning guidance for England says that “A distinction
13
Paragraph 14, National Planning Policy Framework 2012
Ibid, Paragraph: 119 Reference ID: 27-119-20140306
15 http://ec.europa.eu/energy/studies/energy_en.htm
16 Ibid, Paragraph: 024 Reference ID: 4-024-20140306
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Shale gas and planning
should be made in the location plan between those areas where surface works are proposed and those
where only underground operations are proposed to take place. The location plan should identify the
surface area of the application site by edging it clearly with a red line. A dotted red line should edge the
likely extent (including length and direction) of any lateral boreholes. The underground area should be
indicated even where it is within the area of the surface workings.”17 Note that Environmental Impact
Assessment can cover a larger area than the site boundary (as the impacts may be well beyond the site
boundary). It is very important that the local authority has sufficient information at its disposal to make a
sound decision. The Government has consistently argued for less information to be required but in this
instance, as the impacts are unknown, local authorities should require detailed information particularly
about geology, previous workings, hydrogeology, transport impacts (trucking water and chemicals to and
from site), emissions to air, and nearby land uses (local context) and environment. While the Government
has tried to minimise Environmental Impact Assessment requirements, essentially the local planning
authority must be able to give evidence for its decision and for conditions within the decision notice (which
will normally cover transport movements, controlling of flaring and venting, and control of the site itself in
terms of design, layout, storage etc).
What other permits are required?
As well as the planning permission, developers currently may need radioactive waste permits, groundwater
permits and permits under the Mining Waste Directive, which are issued by the Environment Agency and
undergo consultation.
What is the Government doing wrong?
The Government failed to consult on its planning practice guidance for onshore oil and gas. It has therefore
not been tested, nor has the Government issued a response to the feedback it has received despite the
lack of consultation. In addition the Government has failed to match its climate change obligations with its
approach to unconventional oil and gas, creating a confusing and contradictory position for local planning
authorities. The Government is putting local communities at risk through its approach.
References
National Planning Policy Framework 2012 for England
Online planning practice guidance for England http://planningguidance.planningportal.gov.uk/
Contact Naomi Luhde-Thompson, Planning Advisor: [email protected]
17
Ibid, Paragraph: 115 Reference ID: 27-115-20140306
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