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Guest post: An undemocratic betrayal?

Guest Post by by Laurence Williams

A public inquiry gets underway in five weeks’ time to hear Cuadrilla’s appeals against the refusals of planning permission to frack at two sites in Lancashire. A planning inspector wil chair the inquiry, now expected to last up to 20 days. But the final decision will be made by a government minister.

Laurence WilliamsIn this Guest Post, Laurence Williams (above), a doctoral researcher at Sussex University, discusses whether this is undemocratic and a betrayal of the Conservative Party’s commitment to localism.

The announcement that the Secretary of State for Communities and Local Government assumes both the power to ‘call-in’ shale applications and to ‘recover’ shale appeals [1], followed by the recent news that Greg Clarke is to exercise this appeal ‘recovery’ power over the current Preston New Road and Roseacre Wood Cuadrilla fracking appeals [2] provoked much criticism, if little surprise [3].

The initial decision to leave fracking planning determination at the local level of Mineral Planning Authorities (MPAs) surprised some observers, who viewed the Nationally Significant Infrastructure Projects regime as a more efficient means of supporting development [4] , in part for the ability to make applications directly to the Secretary of State. The shale planning system we’re left with does now potentially allow for this move on the part of would-be applicants, depending, of course, on how liberally the Secretary of State is minded to utilise this ‘call-in’ mechanism. We’re yet to see whether MPAs will be by-passed in this manner at the initial application phase, or whether the Minister will restrain himself to ‘appeals recovery’.

The process for the Lancashire appeals now involves a planning inquiry, to be held across up to 20 days, as was already the case prior to ‘recovery’. But now, instead of the planning inspector making the final decision, they will merely make a recommendation to the Minister, who has the final decision and is at liberty to reject the inspector’s recommendation.

‘Betrayal of localism’

Much of the criticism focused on the alleged ‘undemocraticness’ of the move, it’s apparent betrayal of ‘localism’, and the perceived hypocrisy of the stark contrast with the treatment of local communities in onshore wind planning processes [5]. The latter is unfortunate and tends to risk giving the impression of wind farms as essentially optional – thus the legitimate subject of local determination – but shale gas as non-negotiable – thus able to accommodate ‘local democracy’ only up until the point where it obstructs development and the realisation of promised benefits. Which in turn tends to consign local determination to those issues where government recognises the possibility of legitimate disagreement, with the desire for the economic extraction of fossil fuel resources apparently falling outside of this.

The question of whether this announcement constituted an undemocratic betrayal of localism depends on how we understand both the Conservative commitment to ‘localism’, and the relationship between local determination and democratic quality.

If the Conservative commitment to localism is viewed as a normative commitment to local democracy, itself built on an at times questionable normative idea of local decisions as somehow necessarily more democratic, the move is unintelligible. Viewed as a primarily strategic and instrumental attempt to build trust in and ‘ownership’ of decisions as a means to smooth the path of development and the growth it is seen as enabling, the move can be seen as making some sense. As soon as local determination is, far from smoothing the path of development, actually hindering it, it makes no sense – according to this logic – to persist with it.

Carol and Gregory Ludwig of Northumbria University certainly view the Conservative vision of ‘localism’, and it’s practical application in the domain of local planning as operating in the latter sense, stating: ‘it would appear that instead of a democratic form of planning per se, localism is more practically envisaged as a tool to achieve a simpler, cheaper, quicker planning system, reducing conflict about development and enabling growth’ [6].

The claimed slowness and inefficiency of local authorities when it comes to planning applications as a pretence for centralising decision making is of course highly contestable. Much of this ‘slowness’ is reasonably accounted for between inefficient scoping [7] and incomplete applications [8] on the part of Industry, and proper due diligence and scope for public consultation being afforded to this complex issue by local authorities.

In fact, it could be argued that the task faced by local authorities is of the magnitude it is – a magnitude of 1,000’s of objections per well [9] – because Government and Industry have near comprehensively failed to secure the so-called ‘social license to operate’ prior to applications being made.

At a time of stretched planning budgets [10] the can has been kicked down the road for local authorities to sort out, who are then blamed for the apparent slowness and inefficiency of the process and threatened with the revoking of their powers should they be deemed as ‘underperforming’ (i.e. too slow) [11].

A more even-handed and symmetrical assessment of ‘underperformance’ of the governance of fracking would both have more to say about Government and Industry efforts to advance a compelling case for public acceptance before planning, and use criteria beyond mere speed when making this assessment.

Need for speed

The speed imperative has been persuasively described by researchers at UKERC. In short, shale gas’ utility as a bridging fuel is strictly time-limited in a region like the UK [12] – there’s only so long gas can be viewed as the destination of a transition and not something that needs to be largely moved away from itself, certainly in terms of electricity generation. This is a reason for the need for speed, whether it’s a good one is another matter.

More broadly, localism – or BS (Big Society, allegedly) Localism, as Philip Catney and colleagues have suggestively termed it – speaks to Conservative values of self-reliance, responsibility and enterprise [13]. It is obviously a glaring irony that the small army of do-it-yourself investigative journalists, lay researchers and planning aficionados who have sprung up in Lancashire, Sussex, North Yorkshire and elsewhere in response to fracking and it’s handling as a governance problem and object of knowledge have regularly been seemingly treated as a nuisance [14], despite apparently embodying many of the virtues of ideal citizenship as envisioned by ‘BS localism’.

What seems clear then is that civil society involvement is not inherently valued for its own sake.

An argument that has often been put forward is that public involvement on fracking has not been valued because of a lack of public understanding about the issue [15]. To rebuke this idea is not the purpose of this piece – however work I’ve previously published with colleagues has suggested that this argument is at the very least contestable and is to some extent based on an institutional misunderstanding of the nature of public concerns [16]. What seems more plausible is that local involvement is valued to the extent that it coheres with existing views, commitments and visions already held and dominant at centres of power. In sum, ‘BS localism’ has not been ‘betrayed’, the ‘recovery’ move should be understood as entirely consistent with it.

 ‘Slap in the face for local democracy’

On the second question of the relationship between local determination and democratic quality, critics of the appeal ‘recovery’ described it as a ‘slap in the face for local democracy’ and as taking power away from ‘local hands’ to a ‘lone politician in London’ [17]. On the other hand, local MP Mark Menzies, whilst stating that he believed the local councils initial decision should be adhered to, suggested the appeal ‘recovery’ was actually ‘more democratic’ as it would now be taken by an ‘elected representative of the UK Government, rather than an unelected civil servant with no democratic oversight’ [18].

For a dominant approach to democratic theory the democratic quality or otherwise of a decision, forum, or system is not primarily driven by ‘localness’ in any sense, nor ‘electedness’ for that matter, but what John Dryzek has termed ‘deliberative capacity’ [19]. That is to say that, in this view, ‘authentic’, ‘inclusive’ and ‘consequential’ deliberation is central to democratic quality.

The question then becomes whether the present exercise of ‘recovery’, or potential future instances of ‘call-in’ will improve or reduce the opportunity for such deliberation?

Or, put another way, what does Greg Clark have to do to make deliberatively democratic decision, and can the planning system even accommodate such a process?

The main formal host and focus of deliberation preceding the decision will be the aforementioned planning inquiry to be held in February. The decision to ‘recover’ the appeal has not altered this, and, in fact, ‘call ins’ automatically trigger an inquiry as opposed to other planning forums (such as a hearing, or mere written representation), which arguably offer lower deliberative capacity through their very design (assuming Rule 6 status is handed out equitably[20]) [21].

Authenticity

A key aspect of ‘authenticity’ is being open-minded and willing to change your position in the course of the interaction.

It will be necessary for the planning inspector, and, especially if he goes against the recommendation, the Minister, to demonstrate this quality.

This may well seem fanciful in the antagonistic, entrenched fracking controversy, but this requirement is more or less set out in guidance on ministerial propriety for such decisions. ‘Planning ministers’, for example, ‘must approach and must be seen to approach matters before them with an open mind’ [22]. Of course, persuading interested parties, many of whom will be inherently sceptical and distrustful of the Ministers’ approach, will be easier said than done.

For obvious reasons it is difficult to assess how ‘consequential’ deliberation has been to a decision before that decision has taken place. However, what we can say is that this will depend on a ‘double transmission’ of the breadth and depth of deliberation in the inspectors report, and then again in the Minister’s justification of his decision. Again, it will be the demonstration to, and persuasion of relevant audiences that their participation has be influential and taken into account, especially where the decision has ‘gone against them’, that will be the key challenge.

Relevant contributions

The requirement of ‘diversity’ demands that the full range of relevant views be given the opportunity to be voiced and be taken into account. In the planning system the distinction between what is or isn’t a relevant contribution to deliberation is made in relation to local and government policy and captured in the term ‘material planning consideration’. As Chris Hilson has demonstrated, the English shale planning system currently largely frames out a key element of fracking-sceptical discourse and argument.

The production phase ‘final fuel use’ emissions of a given well, or the cumulative impact of an Industry of a given size on climate change mitigation targets, are not considered ‘material planning considerations’ for exploratory applications [23].

Questions over the ‘transitional fuel’ argument and how much of this resource can actually be developed remain very much open to expert deliberation and disagreement [24] but can scarcely be accommodated by a forum such as the February planning inquiry. If the other two requirements of ‘authenticity’ and ‘consequentiality’ look plausibly achievable with regards to the ‘recovery’ focused on here, it is only because ‘diversity’ is so fundamentally ‘closed-down’ by the tight demarcation of ‘material planning considerations’. Contestations over government policy choices on energy, and specifically the extension of fossil fuel development, are of course regularly expressed in broader forums of deliberation (the media, academia, environmental NGO’s and campaigns) – but that they’re scarcely accommodated by exploratory-phase planning processes means that the Minster does not have to account for them in his decision or its justification, giving the whole exercise dubious deliberative capacity.

Therefore the issue is, unfortunately, much more fundamental than whether shale planning decisions are made in London instead of Preston, Chichester or Northallerton.

The key issue, as I see it, concerns what gets treated as a relevant consideration in the formal process which ostensibly offers publics their current best shot for authentic and consequential participation in decision-making on the fracking issue.

The strictness with which the ‘material planning consideration’ boundary in enforced through-out the ‘recovery’ process will be intriguing, as will be –further down the line – seeing whether possible subsequent production-phase applications increase the accommodation of ‘diversity’ and thus the deliberative capacity, and indeed democratic quality of shale planning and decisions-making.

 Laurence Williams is a research student in the Science Policy Research Unit at the University of Sussex.

Notes:

  1. https://www.gov.uk/government/news/faster-decision-making-on-shale-gas-for-economic-growth-and-energy-security
  2. http://www.theguardian.com/environment/2015/nov/27/lancashire-fracking-shale-gas-drilling-cuadrilla-greg-clark
  3. https://drillordrop.com/2015/11/27/minister-to-decide-cuadrilla-fracking-appeals-more-reaction/
  4. http://www.pinsentmasons.com/PDF/ShaleGasFrackingPart3.pdf
  5. https://drillordrop.com/2015/11/27/minister-to-decide-cuadrilla-fracking-appeals-more-reaction/
  6. http://lec.sagepub.com/content/29/3/245
  7. https://drillordrop.com/2015/05/25/campaigners-take-action-as-igas-finds-new-fracking-site-in-nottinghamshire/
  8. https://drillordrop.com/2015/07/21/third-energys-ryedale-planning-application-refused-for-validation-for-second-time/
  9. http://www.lep.co.uk/news/environment/environment/thousands-vent-their-feelings-over-fracking-1-6818773
  10. https://www.nao.org.uk/wp-content/uploads/2014/11/Impact-of-funding-reductions-on-local-authorities.pdf
  11. http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-09-16/HCWS201/
  12. http://www.wbs.ac.uk/wbs2012/assets/PDF/downloads/press/ShaleGasUKERC1502Fin.pdf
  13. http://www.tandfonline.com/doi/abs/10.1080/13549839.2013.792044
  14. http://www.telegraph.co.uk/news/earth/energy/fracking/10572517/Fracking-opponents-are-irrational-says-David-Cameron.html
  15. http://frackland.blogspot.co.uk/2015/02/science-and-public.html
  16. http://pus.sagepub.com/content/early/2015/07/13/0963662515595159.full.pdf
  17. https://drillordrop.com/2015/11/27/minister-to-decide-cuadrilla-fracking-appeals-more-reaction/
  18. http://www.lep.co.uk/news/local/mp-decision-to-call-in-fracking-is-more-democratic-1-7596270
  19. http://cps.sagepub.com/content/42/11/1379.refs
  20. http://www.planningportal.gov.uk/uploads/pins/guide_rule_6.pdf
  21. https://www.gov.uk/government/collections/taking-part-in-a-planning-listed-building-or-enforcement-appeal

22.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/5998/2091742.pdf

  1. http://jel.oxfordjournals.org/lookup/doi/10.1093/jel/equ036
  2. http://www.wbs.ac.uk/wbs2012/assets/PDF/downloads/press/ShaleGasUKERC1502Fin.pdf

 

8 replies »

  1. Experience has shown that Localism and the Planning System are often in direct conflict with each other. New housing and wind farms are typical examples. Planning Law takes precedent (according to the Planning Officers); Planning Committees are instructed acordingly. Generally if a Planning Aplication is recommended for approval on planning grounds and refused by a Planning Committee, the appellant will win the appeal because the Inspector only looks at the application under Planning Law and the validity of the reasons the Committee have refused the application for. It may be that the Inspector finds against the appellant but this is rare and infers that the Planning Officers were incorrect in their original recommendation.

    On this basis one Cuadrilla application appeal will be refused and one will be granted (the drill site applications) by the Inspector.

    It may be better that the SOS makes the final judgement as he could refuse both appeals even if the Inspector has recommended approval of one of them. Calling in an appeal is not new and the process has been around for some time. It is not specific to shale gas by any means. But it is usually reserved for applications which are deemed to be of national importance – shale gas falls into this category.

    • Paul, the decision taken by the MPA suggested that they did not have confidence in their Officers in this case. The planning committee are there to ponder the facts put in front of them, consider them with reference to policy guidelines and come to a conclusion that is in the interests of their electorate. The interesting question raised here is whether the Minister is more or less competent and/or enabled to make an informed decision on these cases than the planning committee. I wouldn’t presume to second guess the Inspectors’ decision although, as LCC have pointed out, there may be a whiff of pre-determination hanging around Mr Clark, which is interesting with relation to the issue of authenticity highlighted above.

  2. John, unfortunately this is not how Planning Law works. And unfortunately many Councillors are not competent to take these sorts of decisions. Too much emotion and lack of understanding of technical issues…. I have been to many (although not MPA) Planning Committee Meetings in several districts in the NW over the last 5 years and the standard of Councillor often leaves a lot to be desired. Often Councillors clearly vote according to political direction rather than in accordance with Planning Law and the Officer’s recommendations. This is not supposed to happen but it does. It occurs less often now as Councils have to pay out a lot of money when they lose appeals after over ruling Officer’s recommendations. One case I was a witness to was a wind farm application at Killington Lake (M6, Lake District) where Banks Renewables (also open cast coal, shale….) had an application for 134m turbines in the M6 corridor betwen the LDNP and Howgills / YDNP. The Planning Officer recomended refusal on concise grounds, the Councillors did not debate the Officer’s key points but decided they needed to be seen to be doing their bit for climate change and dully voted to approve it. A case was made to call this in to the SOS and the SOS agreed that the Councillor’s decision appeared at odds with the Officer’s recommendadtion to refuse – a Public Inquiry was called. The end result was that the Planning Committee were over ruled by the Inspector and the application was refused.

    I doubt the Minister is particualrly more or less competent in the releavnt issues than the Councillors, but the Planning Inspector and his/her advisors are, as are the Planning Officers who made the original recommendations. The real question is whether or not the Planning Law and relevant Government policies are good enough for such significant decisions.

    Hopefully the final decision will be made for the right reasons after a full assessment of all the pros and cons.

  3. A thought provoking paper, however a point I think has not been covered is the reason the Government is avoiding treating shale as a Nationally Significant Infrastructure Project is because that would require each planning decision to take at least 12 months and those impacted would be entitled to statutory compensation. Instead the Government is placing unfair pressure on local authorities to determine complex applications, which are often delayed by a lack of information and other reasons not caused by the authority and taking the decision away from local authorities by exercising call in. I think this is extremely unfair and undemocratic.

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