Live updates from the extra session on oil and gas policy at the Examination in Public of the Minerals and Waste Plan for North Yorkshire.
Today’s event, at County Hall in Northallerton, looks at key issues where gas companies disagree with minerals policy proposed for North Yorkshire, the City of York and the North York Moors National Park.
The planning inspector, Elizabeth Ord, is due to look in more detail at issues including set back distances for shale gas sites from homes, buffer zones around the national park and the definition of fracking, dunconventional and conventional operations.
The hearing is expected to hear from representatives of the shale gas industry, campaign groups and the local authorities in the area.
Reporting on this event has been made possible by individual donations from DrillOrDrop readers. No filming or recording is allowed during the session.
Key points from the hearing
- Against arguments from the industry, the inspector accepts the proposals by the N Yorkshire authorities for:
- 500m buffer zones between shale gas sites and homes
- A definition of fracking based on the fracturing of rocks under hydraulic pressure, rather than volumes of liquid
- A distinction between conventional and unconventional developments
- Oil and gas drilling will not automatically be treated as “major development”
- The industry says the precautionary principle does not apply to land use planning
- The inspector refers to local fear about the development of a shale gas industry and says there’s a need to “tread carefully”
- Industry threatens a judicial review of the 500m buffer zones between fracking and homes
- Lynn Calder, of INEOS, says this buffer is “a ban by another name”
- INEOS says the plan should decide whether shale or potash are more important
Key people at the inquiry
Inspector: Elizabeth Ord
North Yorkshire authorities: Scott Lyness (barrister); Chris France (Director of Planning, North York Moors National Park); Rob Smith, Vicky Perkins (North Yorkshire County Council)
UK Onshore Oil and Gas industry group: Ken Cronin
Lawyer for the industry: Catherine Howard, Herbert Smith Freehills
INEOS representatives: Lynn Calder, David Goold, Philip Neaves, Sandy Telfer, Andrew Batterton (DPA law firm)
IGas representative: Stuart Perigo
Third Energy representative: Alan Linn
Sirius Minerals: Justin Gartland, Graham Clarke
Frack Free Ryedale: Katie Atkinson, David Davis, Frank Colenso
Friends of the Earth: Matthew Dale-Harris
3.50pm Key changes to the plan
The hearing hears that changes relevant to oil and gas include:
- Five-year period to review the plan;
- Amended wording on 3.5km visual sensitivity zone around the North Yorks Moors National Park and areas of outstanding natural beauty
- Changed wording to increase flexibility on controls over fracking in conventional hydrocarbon operations
- Addition to address potential cumulative impacts of developments on climate change
- Changed wording to require developments to avoid periods of heavy traffic and take account of seasonal variations
- Requirement for operators to demonstrate adequate waste water management
2pm Potash and fracking
A previous hearing of the Examination in Public heard that the potash industry wanted setback distances between potash sites and shale gas developments. The plan has already proposed a safeguarding area for potash. INEOS has opposed these issues.
Scott Lyness, for the authorities, tells the hearing that INEOS and the potash company, Sirius, had agreed to discuss the issue. Little appears to have been achieved, he says. Sirius is now proposing a larger safeguarding area than had been previously suggested, Mr Lyness says.
Sandy Telfer, for INEOS, says six petroleum exploration licence would be caught by proposed by the new safeguarding area that would secure potash for up to 200 years. This could restrict shale gas developments, he says.
Mr Telfer says the government has said shale gas is of national importance but potash is of local importance only. He says we should decide which should be safeguarded, he says. Where appropriate, hydrocarbon development should be given priority over potash, he proposes. The potash safeguarding area is now in conflict with the shale gas PEDLs, he says. Should there be a safeguarding policy for the PEDL licences from encroachment from potash, he asks. He also questions the value of buffer zones around potash sites.
There is a need for consultation between the parties about the risk of sterilisation of resources, Mr Telfer says.
David Goold, also of INEOS, says in other parts of the UK oil and gas operators have to get consent to pass through coal seams or workings. Agreements with the Coal Authority safeguard the resource and require oil and gas operators to take certain health and safety measures. He says this is a good analogue to these circumstances.
Ms Ord asks whether fracking would damage the potash resource. Mr Goold says fracking would not reach groundwater bodies, which are deeper than the potash. Groundwater is protected by submitting a fracturing plan, he says.
Alan Linn, for Third Energy, says his company’s hydraulic fracturing activities are much deeper than the level of the potash.
Sandy Telfer, for INEOS, says there should be an Oil and Gas Authority approved agreement with the potash industry. Ms Ord says there would be need for a direction for an agreement with the potash industry.
Alan Linn, for Third Energy, says the company’s PEDL at Ebberston Moor is now within the Sirius proposed potash safeguarding area. He says the gas in this area is directly below the polyhalite. That gas is extensive in the Ryedale area and will never be fracked, he says. The volume of polyhalite, the source of potash, in that area is very thin, he says. But if they did produce, they would be producing from an area on top of a gas that contains hydrogen sulphide.
Sandy Telfer, for INEOS, says Sirius should demonstrate how they would carry out their work without any sterilisation for hydrocarbons.
Scott Lyness, for the authorities, says “We need to know what is being proposed before we respond.” He asks what years of mining would be lost if the PEDLs were excluded from the proposed safeguarding area.
Sandy Telfer, for INEOS, says there is no reason for a potash safeguarding area, based on advice from the British Geological Survey.
“The problem we have here is that this policy is in effect a prohibition.”
Oil and gas companies would never be able to meet the test of avoiding any impact on the potash resource, he says.
Scott Lyness, for the authorities, asks:
“If fracking from the surface is not going to take place in the national park, why would INEOS say it wants to frack in the national park?”
Andrew Batterton, of DPA, INEOS’s lawyer says the definition of fracking could exclude initial exploratory work.
Sandy Telfer, for INEOS, says the extent of the potash safeguarding area is not decided and the current proposal from Sirius extends beyond the national park.
Scott Lyness, for the authorities, asks whether Sirius would agree not go into the PEDL areas. He says this would still allow 50 years of potash extraction.
Sandy Telfer, for INEOS, says the company would accept this, without conceding the principle of safeguarding the potash industry.
Justin Gartland, of Sirius, says the company is prepared to discuss reviewing the size of the safeguarding area and the life of the planning permission for extraction. This will shrink the area but he predicts there will be some overlap with the northern PEDL. He says the company feels very strongly about the principle of safeguarding potash. He says the oil and gas companies will need to compromise too.
Alan Linn, for Third Energy, says his company would object because it plans to move on this unconventional licence after it has got the Kirby Misperton fracking up and running.
Sandy Telfer, for INEOS, proposes a revision to the plan that would allow oil and gas to take priority over potash in some locations.
Justin Gartland, for Sirius, says it is wrong to say potash does not have national importance. It appears only in this location, he says. It has planning permission. It had to meet the test of major development in a national park and is approved by the Secretary of State. The resource is scarce and has global interest. It can only be described as nationally important, he says. It is completely unacceptable to us that gas trumps potash in this particular area, he adds.
Scott Lyness, for the authorities, urges both INEOS and Sirius to “get real” about the areas they are talking about.
The inspector, Elizabeth Ord, suggests there may be an area of overlap for the two minerals. Justin Gartland, for Sirius, says this would be in the national park.
Chris France, for the authorities, says oil and gas development, conventional or unconventional, is a major development and would be allowed only in exceptional circumstances.
“INEOS need to get real about where they are going to be allowed to drill”.
The inspector, Elizabeth Ord, asks what is the intention of the industry. in this area
Alan Linn, for Third Energy, says it may consider drilling under the national park from offshore. There is conventional potential in that area, the says. The PEDL is in the early stage of exploration, he says.
The inspector, Elizabeth Ord, suggests there may not be much scope for agreement.
The hearing breaks until 2pm
1.11pm Proposed protected areas
Scott Lyness, for the authorities, says most of the protected areas in the plan are not disputed, including national parks and areas of outstanding natural beauty.
He says the plan also includes scheduled monuments, registered battlefield, listed historic parks and gardens, and the historic setting of York. He says these have been included through the sustainability appraisal process. These protected areas are beyond those in national legislation.
Mr Lyness says the legislation provides for protecting historic assets. York is the obvious area that should be included, he says.
Ken Cronin, for the industry, says he has no comment on the specific proposed areas.
Elizabeth Ord says she is satisfied, subject to the removal of a “stifling effect”, she is happy to leave this policy as written.
11.54am Fracking in protected areas
The North Yorkshire authorities want to exclude fracking operations on the surface in listed protected areas. Sub-surfaces operations would be allowed where it can be shown that impacts would not cause significant harm to the protected areas. The protected areas go beyond those in national legislation. There is some flexibility that would allow for surface conventional operations in the protected areas.
Elizabeth Ord, the inspector, says she is interested in the issue of extending the protected areas beyond those in national legislation.
Scott Lyness, for the authorities, says the government has already established a principle of extending the list of protected area beyond those in the Infrastructure Act by including sites of special scientific interest in its surface regulations on fracking.
He says is is appropriate to extend the list where protection is needed and support already exists for it.
Ken Cronin, for the industry, says operators accept there should be no shale development in national parks, AONBs and European protected sites. But he says restrictions do no need to be extended further than this. He says the plan’s definition of fracking extends into conventional development. Extending the list of protected areas referred to in legislation is not justified.
Mr Lyness says there is no marked difference at the surface in impact between shale gas fracking and other forms of fracking activity.
Mr Cronin says the authorities should be dealing with this on a case-by-case basis using the existing guidance.
Ms Ord asks what the difference would be in land use planning terms between fracking under the Infrastructure Act and hydraulic fracturing not covered by this definition.
Mr Cronin says the land use planning impacts are all the same. There will be different volumes of fluid. The government does not believe there is any need to go beyond the Infrastructure Act. The authorities have not justified a need, he says.
If the land use planning is the same, Ms Ord asks, does it not follow that hydraulic fracturing not covered by the act should also be protected in the same way.
Catherine Howard, a lawyer for the industry, says there is no hard and fast distinction between hydraulic fracturing and operations using higher volumes. She says the government has consulted on the issues and it would be unhelpful to extend the list of protected areas.
Ms Ord asks again what the impact differences would be between high volumes and mini fracks.
Ms Howard says there could be a mini-frack with a very limited surface impact that would be caught by these restrictions. She calls this a blunt tool.
Ms Ord asks about a mini-frack and should there be flexibility for small-scale operations.
Alan Linn, for Third Energy, says one of the KM8 fractures would exceed 1,000m3, a limit in the Infrastructure Act. We are dealing with a large volume of water going on and off the site. There are pumps and sand silos on the site. That is a modest test frack, he says, that historically would not be included as hydraulic fracturing because the total is under 10,000m3.
He says conventional carbonate reservoirs that need acid processing. You might need 2-3m3 but the same process is followed, though much smaller volumes.
Mr Linn in the horizontal wells, there may be 2km of pipe. Each one of those fractures could be above 1000m3. You would have a lot of liquid, he says. He adds that a distinction should be made between exploration, appraisal and production. He says everything is being treated as a big development in the plan. We will never get the big development
“We are moving towards a ban in this area in the plan as it stands at the moment.
“On the compromises we have made already, the salami slices we have gone through, have had a big effect towards prohibition.
“We don’t think it is sound.”
Scott Lyness says the authorities do not see it as a ban. He says they can see little distinction between the surface impacts of conventional and unconventional oil and gas developments. He is proposing a modification but is not satisfied there should be further flexibility.
Mr Cronin says the modification does not allay concerns. He says the plan is adding restrictions onto government policy. We now have a definition that includes everything so we will not physically be able to work within the plan.
The submission of a planning application is a significant way down the process. We spend a lot of money on surveys. The plan is so restrictive that it will stop this happening too.
Ms Ord says she is content with the plan’s definition of hydraulic fracturing. She says she does not want to stifle the industry.
“The plan is to give qualified support while protecting the environment and residents.
Should there be flexibility for mini-fracks, she says, beyond what the authorities have proposed where the land use impact is lesser.
Sandy Telfer, of INEOS, proposes a volume definition. Ms Ord says this is going backwards. She asks for a form of words to accommodate smaller fractures.
Catherine Howard says the surface impacts will vary by case. This should be looked at through the environment impact assessment regulations.
Ms Ord says this issue has already been discussed. You said this could stop pre-application work with low impact, she says. She says she is looking for a form of words to allow the industry to prove there would not be unacceptable impact from mini-fracks.
Vicky Perkin, for North Yorkshire County Council, says mini-fracks are to test the pressure at which the rocks would frack. They would proceed a main frack job, she says.
Rob Smith, for the authorities, says there may be circumstances for the conventional gas industry to be more flexible. Modified wording is proposed to deal with this, he says, in very sensitive protected areas.
Ms Ord says we are talking about very very sensitive areas. She asks the industry: Are you talking about hydraulic fracturing in these areas? Are you saying that the level of protection sought by the councils would have an unreasonable impact on the industry?
Mr Cronin says we have conventional sites in national parks and areas of outstanding natural beauty already.
Ms Ord says the authorities have accepted this.
Mr Cronin says the industry has a problem with the “exceptional circumstances” test.
Mr Lyness says the wording does not include “exceptional circumstances” . He says the authorities recognise that where a proposal would not have an unacceptable impact the policy would not be applied for conventional operations. This could include fracking in conventional.
Ms Ord says something is needed to be added to policy, rather than supporting test.
Kit Bennett, for Frack Free York, says the Kirby Misperton site could not be described as a minor development. We have seen major movements equipment and an extension to the use of the well pad. Even below the volumes of fluid in the Infrastructure Act, it would still result in major development. It would have to be subject to a very rigorous test.
Katie Atkinson, for Frack Free Ryedale supports the authorities’ proposed modification. North Yorkshire is littered with protected areas. It is unfortunate for the industry that this is where the Bowland Shale is found but these areas should be protected.
Mr Cronin says the government has made clear that there was no need to go further than current legislation and regulations. This is another restriction, he says.
Mr Lyness says there is a difference between surface and sub-surface proposals. The sub-surface would allow operations if they could be shown to avoid significant harm. How could that be objectionable, he says.
Ms Ord asks the industry where operators would seek surface development. Adrian Linn, of Third Energy, says it depends where they want to explore. Micro-seismic monitoring equipment would be on the surface. There is a lot of transitory equipment, he says.
Ms Ord asks whether there is a need to distinguish between temporary monitoring equipment. Mr Linn says the plan is becoming increasingly prescriptive and the industry is becoming boxed in. We would rather see something that is enabling where we can work with the council. Ms Ord asks whether flexibility is needed to allow this.
Mr Cronin says there a lot of exceptional circumstances and he is happy to provide a list, which might be quite long. Ms Ord says a list isn’t needed. She says she is trying to avoid stifling the industry.
Chris France says the example given by Mr Linn is permitted development. Mr Lyness says he will look at any exceptions not included by permitted development. Ms Ord says it is a matter of not stifling the industry. She invites the industry to go back to the council with its ideas.
Catherine Howard repeats the industry regards the 500m is unsound and would be legally-challengeable at judicial review.
Lynn Calder, of INEOS, says a 500m buffer zone is a sterilisation approach. She says:
“This is a ban by any other name”.
The inspector says she is regularly threatened with legal action..
The session resumes at 11.45am
11.10am Definition of hydraulic fracturing
The authorities are proposing a different definition of the process than the Infrastructure Act, which is based on volume. The minerals plan proposes to use a definition of any operation resulting in opening or extending fractures in rock.
Scott Lyness, for the authorities, says the KM8 experience has shown that fracking work could be taking place in the area which does not technically mean associated fracking (under the act) but has similar land use implications. The KM8 operation would not be classed as associated fracking because the volumes are below the limit. We don’t think the volume limit should justify a different approach to land use.
Rob Smith, for the authorities, suggests a modification to bring the proposed wording inline with minerals planning practice guidance. Mr Smith says there are potential for proposals for fracking that do not meeting the limit under the act. It is not appropriate to rely on the definition in the act.
Ken Cronin, for the industry, says the government has clarified the definition to include 1,000m3 at any stage, not at all stages. This included KM8 and required KM8 to go through the approval process. The government is clear that the restrictions do not need to be extended. Mr Cronin says there are already mechanisms in place. There is no need to redefine operations.
Elizabeth Ord says there are two different issues. One is about land use planning and the other is the Infrastructure Act. She asks Mr Cronin whether the authorities’ approach is unsound on land use impacts and then says:
“I don’t think their approach is unsound”.
Scott Lyness, for the authorities, says the Infrastructure Act was developed for a different purpose. Government regulations since then have not changed the authorities’ arguments. We are concerned about applications coming forward that would have land use implications but would not meet the definition. We are not trying to redefine but to come up with a policy based on experience in this region.
Alan Linn, of Third Energy, says the definition in the policy has very little to do with hydraulic fracturing.
Catherine Howard, a lawyer for the industry, says it opposes any deviation from the national definition. The land use impacts should be best done through the environmental impact assessment
Paul Andrews, of Malton Town Council, says using the Infrastructure Act it would allow companies to get round restrictions in the N York Moors National Park.
Elizabeth Ord says
“I am happy that the council’s definition doesn’t go along with the 2015 act”
Ms Ord says any definition used in the plan could not be used outside the plan. She suggests some clarification that it is for use only in the plan.
Katie Atkinson, for Frack Free Ryedale supports this suggestion.
Cllr John Clark, for Ryedale Liberals, says the plan definition does not refer to “hydraulic” and there should be a reference to liquid.
Alan Linn, for Third Energy, suggests the insertion of “hydraulic pressure”. The authorities has proposed removing this words “hydraulic pressure”. Scott Lyness, for the authorities, says the key point is that there is no distinction in land use planning terms between fracking operations that don’t meet the associated fracking limit and those that do.
The inspector says the proposed definition is sound as it was original written.
11.03am “Major development”
Scott Lyness, for the authorities, says they have moved back from the assumption that all oil and gas drilling would be regarded automatically as “major developments”. This would be considered on a case by case basis, he suggests.
Elizabeth Ord, the inspector, says she is content with this change.
10.14am 500m buffers
The plan proposes to permit developments within 500m of sensitive receptors only in exceptional circumstances.
Inspector Elizabeth Ord says she agrees that there could significant impacts within 500m of receptors and there are unknowns. But she asks if the industry can mitigate to an acceptable level within 500m how is the policy sound? “Exceptional circumstances” is a very high bar, she says. She suggests an alternative phrase: “must be robustly demonstrated”.
Scott Lyness, for the authorities, accepts the point on “exceptional circumstances” but endorses point that a 500m buffer is designed to introduced flexibility. They have proposed new wording requiring a high level of protection.
Ken Cronin, for the industry body, UKOOG, says the 500m figure has not been justified by the minerals plan. There are already adequate protections for noise and landscape for everyone in existing planning guidance. It is much more complex than 500m figure would suggest.
Catherine Howard, of Herbert Smith Freehills, says impacts will depend on existing noise and light. 500m would make no different to some homes in locations next to a busy road, for example, she suggests. We feel it is a flawed approach, she says. It would be “a wholly erroneous” test. We are confused about what is meant by a “high level protection”, she says.
Cllr John Clark, for Ryedale Liberals, says 500m is very simple. He cannot understand the industry’s confusion. Mr Clark says if the industry wants to work with the local community then the idea of fracking happening where people live because it is already noisy is the wrong way round. At least people have a clear definition.
Matthew Dale-Harris, Friends of the Earth, says the concern of the industry is unjustified. He argues that the precautionary principle applies because of health concerns about the emerging industry. The industry should be held to a higher standard and a higher levels of standard need to apply.
Christopher Stratton, for south Hambleton villages, says 500m is little more than a quarter of a mile. We are not happy about the test of a high level of protection because it is vague, he says. He proposes a return to a test of exceptional circumstances.
“We cannot envisage any circumstances where less than 500m would be acceptable. Do not apply to 500m as a guide – it is a fundamental principle. This is crucial to us”.
Cllr Paul Andrews, for Malton Town Council, says there has been no discussion about air emissions from shale gas sites. Homes should be a long area away from these emissions. He says 500m is far too small. There should be a bigger distances between shale gas sites and properties. You cannot deal with this issues by conditions, he says. He urges the inspector to stick to the “exceptional circumstances” test and adopt a large distance of one or two miles.
Kit Bennett, Frack Free York, supports a 500m distance on public health grounds and the precautionary principle. The industry has been shown to have severe adverse impacts in other countries, he says.
Alan Linn, of Third Energy (right), says the industry’s intention is to minimise the impact on the surface to do most of the work underground. The shale gas is not everywhere in Ryedale or the N York Moors.
“A 500m buffer zone is basically a sterilisation zone. The effect of the plan is to stop the development of unconventional hydrocarbons. I have a major concern about this approach.
“All the legislation exists and we have a gold standard for regulation”
The regulators take account of all the concerns discussed here, he says.
“We are bolting on a new set of principles onto existing legislation.
“When you draw a 500m radius around the properties in the area we propose to develop it doesn’t leave much space left.”
We are trying to do everything correctly, he says. The bolt-ons detract from what exists already.
Katie Atkinson, for Frack Free Ryedale supports the 500m distance as a minimum. The industry should be able to extract from a 1km radius.
Scott Lyness, for the authorities, says the supporting text could include the words “an appropriately high level of protection. Inspector Elizabeth Ord says she does not want to create sterilisation. Mr Lyness the authorities want to allow the industry to be able to demonstrate impacts can be mitigated to an acceptable level. Ms Ord suggests the authorities come up with new wording.
Catherine Howard, of Herbert Smith Freehills, says regardless of the wording, the 500m is a higher test than national planning policy. The purpose of policy is not to flag to developers or residents it will be harder to meet the tests. It is a matter for each developer to make the case in those circumstances, she says. I don’t think it is sound for a higher legal test to apply with an arbitrary limit of 500m, she says.
Ms Ord asks about buffer zones in other mineral developments. She also asks for the unknown industry and a community that is concerned about developments.
Ms Howard says any application will be carefully scrutinised. If the impacts are unacceptable they should be refused. There is no need for a blanket policy with an arbitrary limit, she says. She says she can’t comment on other forms of mineral buffer zones.
Ms Ord says:
“We have a situation with a new industry and a lot of fear about it. I accept that fear should not make planning policy but the precautionary principle is well established and there is justification of treading carefully in the first five years of the plan.”
The plan will be reviewed in five years. There needs to be some safeguarding but it needs flexibility within it, Ms Ord says.
“I am trying to get wording that will allow flexibility but also give some comfort to the residents and satisfy the precautionary principle.”
Ms Howard says:
“The precautionary principle does not apply here.
Chris France, for the authorities, says the government’s documents on shale gas have many references to the precautionary principle. The government has banned fracking in protected areas. He says he doesn’t know what part of national policy that the industry thinks the 500m buffer is in conflict with. He says the NPPF allows local councils to introduce environmental criteria.
“I am satisfied that there should be a 500m buffer, or whatever you want to call it.”
She calls on the authorities to come up with a wording that allows the industry to develop if it can demonstrate robustly impacts would be acceptable.
10.09am Conventional vs unconventional
Ken Cronin, of UK Onshore Oil and Gas, (left) the industry body, says the industry distinguishes only between conventional and unconventional geologies, not operational techniques. He says many aspects of the operations are the same, regardless of the geologies.
Elizabeth Ord, the inspector, says things are uncertain at present as the shale industry develops. If the industry can demonstrate in future that the split is not justified it can be reviewed in five years. She says:
“I am content to leave the plan as it is at this point in time.”
Mrs Ord says the West Sussex Minerals Plan has different policies for conventional and unconventional.
Catherine Howard, of Herbert Smith Freehills, says the industry is content with the West Sussex plan.
Mrs Ord says she is content with the North Yorkshire policy on this issue.
10am Session underway
Inspector Elizabeth Ord opens today’s hearing.
Reporting from this event has been made possible by individual donations from DrillOrDrop readers.