Regulation

Weekend long read: Is the planning system playing fair with local communities?

180424 Harthill 8 DOD

Part of the INEOS team on the opening day of the Harthill inquiry, 24 April 2018. Photo: DrillOrDrop

DrillOrDrop has reported from two shale gas public inquiries this month. Ruth Hayhurst reflects on the challenges facing local people when they take on the industry.

On Tuesday people will line up to tell a public inquiry why they don’t want an INEOS shale gas well in the south Yorkshire village of Harthill.

At another inquiry in Lancashire, which finished last week, more than 70 people spoke out against Cuadrilla’s fracking plans near the village of Roseacre.

They included farmers, teachers, local councillors, a lorry driver and school governor, carers, parents, and a retired local government officer. They talked about the risks of articulated lorries delivering large loads along quiet, narrow and winding country lanes. Many said they had lived in the area for 15 or more years, some for 40 years.

They were not professional planners, ecologists, noise experts or highway consultants. They developed their cases in their spare time at kitchen tables and at meetings in the homes of neighbours. They faced the prospect of questions from Cuadrilla’s barrister, Nathalie Lieven, described as one of the UK’s leading silks.

At the Harthill inquiry, in Rotherham, people making public statements have a choice of being cross-examined by Gordon Steele, INEOS’s QC. He is described by his chambers as “one of the finest advocates in Scotland”. In the opening week of the inquiry, he was supported by eight INEOS executives and consultants and more are expected to attend the hearing next week. If the public participants decide not to be questioned, they have been warned that their testimony will “hold less weight” with the inspector.

Many of the people that DrillOrDrop spoke to at both inquiries believe they had a good case but for many reasons they felt at a disadvantage.

“Considerable burden”

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The Roseacre Awareness Group barrister, Ben Du Feu. Photo: Cuadrilla webcast

In Lancashire, Roseacre Awareness Group, the community group opposing Cuadrilla, chose to play a formal role at the inquiry, as what is known as a Rule 6 party, represented by a barrister. The group said the cost of the nine-day hearing was around £40,000. This had to be raised by local events and from donations.

Barbara Richardson, the chair of Roseacre Awareness Group, said this figure did not include thousands of hours that volunteers put in for free:

“There is a considerable burden placed on the community. Ours is only a small group and the stress has been tremendous but we are resolved to protect our community which makes us so determined to fight every step of the way.”

During the inquiry, the group faced the challenge of having to evaluate extra information provided at short notice by Cuadrilla. Mrs Richardson said the company submitted 33 new documents and “copious amounts of raw traffic data”.

“They have the resources to react quickly”, she said.

“Disadvantaged and prejudiced”

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The inspector at the Harthill inquiry, Stephen Roscoe. Photo: DrillOrDrop

In Rotherham, the local opposition group, Harthill Against Fracking, faced a complex challenge just days before the inquiry opened.

It emerged during April that INEOS had submitted to the Planning Inspectorate alternative plans to organise vehicles delivering to the proposed site. They were set out in a 140-page document called “an enhanced traffic management plan”. The new proposals included 23 passing places, two sections of the route managed by stop-go boards and the use of banksmen to control traffic.

On 10 April, INEOS’s consultant sent the document to some third parties with an email which said it “contains no new proposals; simply a refinement of the traffic mitigation measures that had already been proposed.”

Deborah Gibson, of Harthill Against Fracking, told the inquiry’s opening day:

“Most of the people in Harthill who are opposing the application go to work. We are having to do all our opposition work in the evening. We are disadvantaged and prejudiced because of this submission.”

Mrs Gibson said one member of the group had the chance to look at the new proposals only six working days before the inquiry opened. She said:

“It is hard work. We are opposing professional people who are paid to do this every day. We are not professionals. We are doing this as voluntary work.”

It was unclear until the inquiry opened whether the inspector would allow the INEOS revised plans to be considered. As a result, Harthill Against Fracking had to prepare two presentations to the inquiry, one based on the original plans and one on the new version.

Mrs Gibson told DrillOrDrop:

“This felt like a huge rush.

“For the last year, we have been on a steep learning curve about planning control procedures. We are not professionals. We are trying to make sense of it. This last piece of information [from INEOS] has come as another hurdle.”

Harthill Against Fracking did not apply for Rule 6 status. Its participation at the inquiry was at the discretion of the inspector, Stephen Roscoe. He did allow the group to make a presentation. But he refused Harthill Against Fracking a four-week adjournment for it to examine the company’s new proposals.

Mrs Gibson said:

“It seems that there is very little recourse for those of us who cannot afford a good barrister or advice.”

“The appeal process should not be used to evolve a scheme”

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Members of the public at the opening day of the Harthill inquiry. Photo: DrillOrDrop

Friends of the Earth, which opposed the INEOS application, told the inquiry it had not been informed of the new traffic proposals. Its planner, Magnus Gallie, argued unsuccessfully that the enhanced management plan should not be considered. He said:

“The appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.”

CPRE also opposed consideration of the new traffic proposals. Its representative, Andy Tickle, told the inquiry:

“These changes [in the enhanced traffic management plan], in our view, and if accepted, materially alter the nature of the application and its local impact, potentially permanently.”

Mr Tickle said of the consultation on the new proposals:

“[It] appears to us to have been both too short and incomplete to allow for properly seeking interested people’s views, and in particular, non-statutory parties.”

He argued that the so-called Wheatcroft principle on fairness to third parties applied in this case. This is a principle in planning law that helps inquiry inspectors to decide whether to accept changes to appeal schemes.

Under the Wheatcroft principle, amendments would not be accepted if the development was so changed that to allow consideration of it would deprive those who should have been consulted on it the opportunity for consultation.

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Gordon Steele (left), INEOS QC, at the Harthill inquiry. Photo: DrillOrDrop

Gordon Steele, for INEOS, argued that the Wheatcroft principle did not apply because the enhanced traffic management plan did not change the proposals for a shale gas exploration well. He said the traffic management plan was covered by proposed conditions not the substance of the application.

Officers had Rotherham Borough Council had thought the new proposals dealt with their highway safety concerns and they recommended the council drop its highways objection at the inquiry. Members of the council’s planning board overruled the officers voted to maintain the opposition on highway grounds.

The inspector backed the company’s argument and allowed the inquiry to consider the new scheme. Referring to the cost of legal and technical support, Deborah Gibson, of Harthill Against Fracking, commented:

“What it has come down to is who has the biggest pockets. It is not us, or the council. It is INEOS. And that feels incredibly undemocratic.”

Fracking, planning and the future

In future, local communities could see their role change in decisions about shale gas exploration and fracking.

Tomorrow a committee of MPs will question representatives of the shale gas industry and environmental groups about whether fracking developments should be regarded as nationally-significant infrastructure. Decisions on these projects are taken out of the hands of local authorities and made instead by a government-appointed inspector.

Tomorrow’s meeting of the Housing, Communities and Local Government Select Committee will hear from INEOS, Cuadrilla, the industry body UK Onshore Oil and Gas, as well as Friends of the Earth and CPRE. Nearly 200 people have submitted written comments to the committee’s inquiry. Only one comment unequivocally supported the idea.

In addition, the government is consulting on changes to the National Planning Policy Framework, the guidelines for decisions on all developments.

The proposed revisions require local councils in England to develop policies that “facilitate” onshore oil and gas developments, “recognise the benefits” of exploration and extraction when deciding applications and “plan positively” for them.

The deadline for comments is Thursday 10 May 2018. Responses can be submitted

  • online: https://www.surveymonkey.co.uk/r/NPPFconsultation
  • by email using a consultation formand sent to planningpolicyconsultation@communities.gsi.gov.uk
  • by post to Planning Policy Consultation Team Ministry of Housing, Communities and Local Government 3rd floor, South East Fry Building 2 Marsham Street LONDON SW1P 4DF

Links

DrillOrDrop pages on the Roseacre Wood and Harthill inquiries, including links to detailed daily posts and key information

23 replies »

  1. They are far too concerned with the local people that it gets in the way of national planning laws. Obviously they should take into consideration local concerns, however if the planning proposals don’t go against planning laws, there isn’t really much they can do about it.

    A lot of councillors are spineless and are too afraid of what their constituents will think of them and so vote against most conventional oil proposals. Suck it up and grant permission or face lengthy and costly appeals should companies go for costs against them.
    (looking forward to your lengthy reply Phil C).

    • Ha! Ha! Unlike you I had other things to do this weekend peeny, and also unlike you I tend to read and digest the subject first before I comment.

      Actually Ruth has set out the question of this present deliberately and weighted relatively unbalanced inquiry situation extremely concisely and correctly, thank you Ruth.

      I will think about it a little more before commenting. Rather than being so bizarrely prompted by your weak little attempt at provocation in this instance?

      Knee jerk comfort blanket reactions are more peeny style aren’t they?

      Never mind peeny, nice try but no cigar or indeed any other potty time reward?

        • Apologies for cutting and pasting from the above report Ruth, but to begin looking at this issue of heavily weighted inquiries for the operators and against the public, it is necessary to quote as it is written.

          Firstly this:

          “At the Harthill inquiry, in Rotherham, people making public statements have a choice of being cross-examined by Gordon Steele, INEOS’s QC. He is described by his chambers as “one of the finest advocates in Scotland”. In the opening week of the inquiry, he was supported by eight INEOS executives and consultants and more are expected to attend the hearing next week. If the public participants decide not to be questioned, they have been warned that their testimony will “hold less weight” with the inspector.

          Many of the people that DrillOrDrop spoke to at both inquiries believe they had a good case but for many reasons they felt at a disadvantage.”

          This is in itself a confession by Gordon Steele that they assume they have some unnatural sway over the proceedings and the inspector by stating that the testimonies will “hold less weight” with the inspector?

          This is quite revealing, since firstly, how does Gordon Steele know what the inspector will hold or not hold with less or more weight or otherwise with any testimony by anyone other than Ineos apparently omnipotent fore knowledge?

          A very odd statement indeed, and i would expect the inspector to refuse that and say so, that public objections should and do hold just as much “weight” as any other statement or position be it from a so called “professional” mob handed legal team or from a member of the public.

          That very statement implies deep and unfair bias at the very least and should be entirely overturned by the inspector in Tuesdays proceedings, anything less that that is an admission of a fixed kangaroo inquiry and has immediately invalidated it in every respect.

          I will read on.

          • The operating elements here seems to be as suggested in these extracts precisely as they describe:

            “The inspector backed the company’s argument and allowed the inquiry to consider the new scheme. Referring to the cost of legal and technical support, Deborah Gibson, of Harthill Against Fracking, commented:

            “What it has come down to is who has the biggest pockets. It is not us, or the council. It is INEOS. And that feels incredibly undemocratic.””

            and

            “On 10 April, INEOS’s consultant sent the document to some third parties with an email which said it “contains no new proposals; simply a refinement of the traffic mitigation measures that had already been proposed.”

            Deborah Gibson, of Harthill Against Fracking, told the inquiry’s opening day:

            “Most of the people in Harthill who are opposing the application go to work. We are having to do all our opposition work in the evening. We are disadvantaged and prejudiced because of this submission.”

            Mrs Gibson said one member of the group had the chance to look at the new proposals only six working days before the inquiry opened. She said:

            “It is hard work. We are opposing professional people who are paid to do this every day. We are not professionals. We are doing this as voluntary work.”

            It was unclear until the inquiry opened whether the inspector would allow the INEOS revised plans to be considered. As a result, Harthill Against Fracking had to prepare two presentations to the inquiry, one based on the original plans and one on the new version.

            Mrs Gibson told DrillOrDrop:

            “This felt like a huge rush.

            “For the last year, we have been on a steep learning curve about planning control procedures. We are not professionals. We are trying to make sense of it. This last piece of information [from INEOS] has come as another hurdle.”

            This is situation is very plainly weighted against any local public opinion and representation and weighted very heavily in support of well funded corporate mob handed legal teams last minute applications who appear to play this quite deliberate game of waiting until the last minute to submit a newly revised proposal that they have prepared in advance and the local groups and individuals, who work at demanding jobs and have little in funds except for that raised by public individual support are successfully alienated from the process to an alarming degree.

            There plainly needs to be some urgent correcting of this unbalanced and unfairly weighted process in favour of corporate railroading of inquiries.

            Perhaps at the very least there should be an automatic minimum period adjournment of the inquiry when such new proposals are submitted, regardless of whether that is claimed to not change the proposals, since that is biased opinion and needs to be examined for validity.

            A month minimum period seems fair to finalise submissions and if submissions are deposited after that period, then they should be rejected or the process delayed until all the interested parties have had a chance to study the implications.

            As regards funding it is clearly massively unfair and deliberately weighted against local public opinion and is as such a travesty of any democratic process. So i would suggest that the government be forced to match funding and allow the local residents to choose their own representative team of experts specialists and legal council to fight such cases in a fair and balanced method.

            It was the Cameron government in April 2013 that began the process to curtail and stifle legal aid representation, presumably so just such a situation as this would otherwise be fought fairly and squarely.

            https://www.independent.co.uk/news/uk/home-news/new-legal-aid-reforms-end-justice-for-all-lawyers-warn-8591234.html

            That effectively prevented any legal level playing field to be operated in this country and we are now in a position where only well funded private corporations can seek legal representation and justice at a price and the public are left in the legal doldrums.

            Now we hear that even that narrow avenue is to be removed by the government taking such matters out of the hands of local planning authorities and into closed door heavily lobbied central government chambers. We have seen what happens then?

            So what is the price of the lives and freedoms and health of local residents anywhere and our opinion and representation now? Is it only money that gets “justice”? Is only money “justice” now? The theft of 800 years of legal representation rights by government decree? Who agreed to that? Is it now only Corporate oligarchy rule? Or dictatorship by stealth?

            We roll over and play dead on these matters at our own peril don’t we?

    • A planning officer considers the proposals against the NPPF and local plan. Many issues are clear in whether or not they are acceptable.

      There are however many grey areas. The officer may present wording such as ‘considered acceptable’ ‘low risk’ or ‘could be mitigated’
      This is when you need the input from local communities and those who can present information which may be relevant. The interpretation and relevance of that information is often arguable whether or not it is in conflict with policy.

      That is why we have a group of Councillors to look at all the information and then decide on whether or not a development should be permitted.

  2. Fracking developments should be regarded as national infrastructure, due to the huge benefits it would have (I don’t need to list them we all know). Get national planning inspectors in that think locally and nationally rather than just locally. Speed up the process and start realising the benefits. It really is a ball ache seeing all the delays over minor issues, that could have permission granted with conditions rather than just rejecting everything. Leave it to the professionals not the Nimby councillors. Not a popular opinion on the lefty page i know, but its how i feel. Fed up.

  3. Well, John.

    How about:

    Tesla-15 years after founded, first quarter results today, expected to show a loss of £324m. Speculation that Tesla will need a huge rights issue this year.(That’s the “alternative.)

    Now for the reality:

    Last month US oil output averaged a record 10.4m barrels a day, up 260,000 barrels a day from February boosted by burgeoning shale production. This has ensured a big margin between Brent crude and West Texas Intermediate.

    Shell distributes more dividends than any other company listed in London-a total of nearly $16 billion this year. A few OAPs rely upon that.

    We will see with UK shale whether it will be competitive-when it happens. Meanwhile there will be room for speculation about costs, but the way the market is moving at the moment is setting a higher ceiling for it to come under. Had your indications yet of domestic gas and electricity price increases?

  4. In terms of the Planning System, this is the same for other industries. Can’t really see much point moaning in reference to the oil and gas situation when it is just the same for housing etc.
    Whilst local authorities employ reasonably competent professionals, they are often contradicted by local councillors who make things up as they go along and try and ignore the frameworks that apply. Appeals against this type of decision are expensive directly and indirectly to the company concerned, and they are often left out of pocket even if they are successful, as appropriate costs are rarely sought, or awarded, in efforts to maintain a reasonable local engagement.

    Whilst the housing situation is one most councils deal with on a regular basis, oil and gas (and other minerals) are not. It certainly needs more specialist knowledge brought into the equation, perhaps with a half way house of a specialist central body to work with the local bodies where appropriate. That would not satisfy the local UDI supporters, and it will probably take significant costs applied against a council for it to be accepted, but I see it will happen-but not quickly.

  5. To test these often repeated opinions that it is Lefty nimby councilors or lack relevant expertise that is holding everything up then why not start the Fracking drive in a true blue (Tory) area like David Cameron’s lovely Cotswold region, or better, the Surrey stockbroker belt? There would be no shortage of funds for calling forth the relevant expertise or inexperience in using legal processes. I wonder if things would progress any faster. I think not.

  6. That’s pretty sensible PhilipP. Let’s just avoid where the gas/oil may be and frack away somewhere else for a little entertainment!

    Not sure that will even excite those in a constant state of excitement.

    I thought the antis were already trying to stop fracking in Surrey, with none proposed, because the “idea” of it could have caused an earthquake close by!

    How different is it for FOE to employ a QC to Cuadrilla doing the same?

    • Glad you think it sensible Martin (irony ignored). Its just a matter of licensing and drilling. The Cotwolds are certainly on the map as containing a major ‘backbone of black shale deposits’ running down through the UK.

  7. So then, why has there not been any serious previous exploration in that area? The common sense test should be a priority over Giggle.

    There seems to be a philosophy that you can fool a few of the people all of the time, which is probably true, but not within the two thirds it appears. There is a lesson there, and that has been pointed out on DOD many times, but those of us doing so have no qualms in doing so, as we know it will not be heeded, as the greater goal is to keep the antis excited and prevent them drifting away.

  8. You dont know do you. What do you think? Here’s a simple answer… poorer areas are less likely be able to use laws and hir attorneys to stand their ground; and their people will be easier to bribe, intimidate, or both. These are the golden rules of the gas industry – for making rapid progress in the States at least. But its been easy over there with big land owners too because 1/ they get significant royalties due to mineral rights and 2/ they dont have to live near the wells.

  9. Oh dear PhilipP! So the two thirds are “bribed and intimidated” now! That is about as low as you have descended (so far.)

    Strange though, that a paltry amount (in the antis words) has been offered-so far.

    You really have no answer to people who disagree with you. Perhaps they are just less intelligent and therefore prone to being bribed and intimidated?

    I have worked for several US companies and they do operate in somewhat different ways to what we are used to in the UK, but to keep using them as the way companies will operate in the UK is fiction.

    • Your usual blinkered and presumptuous response. I’m not accountable for your comprehension Martin. I said here’s ‘a’ simple answer not ‘the’ answer, and I said what do you think? What might be picked up from observers in the States may/may not apply here. Clearly the mineral rights are different as are royalties. Also, clearly the locals at PNR etc are not taking anything lying down.

      So, whats your answer then? Why not go for the Cotwolds/Cameron area then? Given that it wouldn’t be full of ‘Lefties’.

  10. Well, PhilipP, I thought you recognised that exploration for gas/oil should focus upon those areas with best opportunities? Otherwise, we could end up with wells being drilled left, right and centre with no benefit to locals but all the inconvenience. Doesn’t help the NIMBYs, does it?

    Perhaps from your end of the telescope that is difficult to see.

    You do realise a lot of vehicles in USA have a steering wheel on the left hand side (looking forward). Goodness, that could cause a real problem in the UK, especially if they drove on the other side of the road! What should the precautionary principle do about that?

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