Fracking Week in Parliament 2
The planning application by Third Energy to frack at Kirby Misperton cost North Yorkshire County Council more than £500,000, MPs were told this week.
The council’s chief executive, Richard Flinton, told a select committee investigating planning guidance that local authorities did not have enough money to process fracking applications properly.
“We received some funding help [to process the Kirby Misperton application] from the Government, which amounted to in the region of £170,000 so there is a considerable balance to be met by the council.”
The fee paid by Third Energy when submitting the application in 2015 was £3,638.
Sally Gill, the planning manager for Nottinghamshire County Council, told the committee
“They are very resource-hungry applications for us to deal with.”
She said the whole authority was involved when IGas submitted two shale gas applications to Nottinghamshire County Council:
“It was not just my team and the planning and licensing committee; it was my colleagues in the emergency planning and my legal colleagues. It was not just a burden on my planning finances; it was a burden on the local authority’s finances.
“the interest relating to shale gas applications and the amount of time we have had to all spend on these applications far outweigh the time we would have spent on an application for sand and gravel extraction and things.”
Andrew Mullaney, Head of Planning and Environment at Lancashire County Council, said the costs to the authority continued after permission was granted for Cuadrilla’s fracking site near Blackpool:
“It is not just determination; it is post decision as well, in terms of the monitoring and enforcement of sites.
“At the peak, if something at the site is happening—say, for example, the fracking rigs are being brought on, which they will be at some point in the summer—I am expecting our complaints to go through the roof and us to have to deal with those. Whether they are actual complaints or how significant they are, nevertheless all have to be investigated.”
The council officers said people contacted their local authorities first when they wanted to find out about local shale gas plans.
Andrew Mullaney said:
“If you look at the number of representations sent to the Environment Agency on permit applications, they are dwarfed by the number of reps that councils receive, because people see the democratic representative role of the council.”
National or local decisions?
One of the key questions is whether fracking applications should be decided locally by councils or nationally by a government-appointed inspector at a public inquiry.
The officers from Lancashire and North Yorkshire, the only two authorities to decide applications for fracking, both said decisions should be made locally.
Andrew Mullaney, from Lancashire, said:
“If I say nothing else to you, I really want to make this important point. We believe it is vitally important that decision-making stays local.”
He said decisions made under the Nationally-Significant Infrastructure system would probably take longer than those made by local authorities.
“National infrastructure could take up to a year and possibly two. National infrastructure requires a lot of groundwork to be done, even before the hearing is made. There is then a 12-month period in which the Secretary of State has to have made the development consent order.
“Further down the track, if you come to make changes to the planning conditions—or requirements, as they are called—that can be a very clunky, cumbersome process. If you look at the guidance on the changes to development consent orders, they are classed in two parts: material changes and non-material changes. If you are getting into material changes, you can possibly open up again the whole infrastructure examination process. Careful scrutiny needs to be made of the timescales that would be attached to this.”
Richard Flinton, from North Yorkshire, said:
“I absolutely fundamentally believe that the first port of call is that it should be a local authority determination.
Unless the whole development is very sizeable, it should not automatically go up into the national infrastructure regime; it should stay local so that there can be the full scrutiny of it locally. Local people should have the opportunity to pitch their views in and understand how all the issues are being determined.
“In any event, you would have to replicate quite a lot of that in terms of your statutory consultation duty. The determination being at the local authority level feels like the right place for it to be.”
Sally Gill said Nottinghamshire County Council could see benefits in both local and national decision-making for fracking applications. But she said:
“The role of the minerals planning authority is the main way that members of our local communities can engage with the debate around shale gas and fracking. Through all our processes, that has been a very important role. Our members had to make some very difficult and challenging decisions. There was a lot of media interest and wider world interest. If these applications were to be dealt with by the nationally significant infrastructure project regime, it would still need to be recognised that local authorities have a big role in that and we would need to be adequately resourced to deal with consultation.”
Executives from the Environment Agency, Health and Safety Executive and Oil and Gas Authority said it would make no difference to them if applications were decided nationally.
Speed of decision-making
The shale gas industry complained to the committee that applications were taking too long.
Andrew Mullaney responded to comments by Matt Lambert, of Cuadrilla, that the decision on the company’s Preston New Road shale gas site near Blackpool had taken 28 months.
“The suggestion that local authorities are somehow dragging their feet or do not have the competencies in speed of determination is wrong.
“I know Mr Lambert, in the last session, alluded to 28 months. That is not a figure I recognise. I can understand how he might have said that but do not agree, being close to the determination process and know what happens.”
Andrew Mullaney said Cuadrilla had been keen to respond to detailed consultation comments on the application. At each point the company submitted fresh information that then required another round of consultation.
“What you have, because of the external pressure that is coming to this, is a process that is long. It took us 12 months from receipt of the application to determination—not 28 months—but that was punctuated by five, possibly six Regulation 22 sets of information from the applicant.
“This notion that local authorities are dragging their feet and have not got the competencies is just not true. If it happened at the Planning Inspectorate it would be exactly the same.”
Definition of fracking
The committee heard that the North Yorkshire draft minerals plan included a definition of fracturing based on the pressure needed to fracture rocks, rather than the legislative definition, based on the volume of fluid used in the fracking operation.
Richard Flinton explained why:
“If you were to use the definition that is in the regulations around national infrastructure, then you would narrow it down so much so that we feel that applications that just miss that threshold would require all of the same level of consideration as something that hit that definition.
“We also believe that it is necessary to have something that is clear to the public in terms of what is understood by the term “hydraulic fracturing”; they can then be open to participating in the planning process as a result of a definition that is not completely all-encompassing but is open to their understanding of the phrase.”
Nicola Howarth, the minerals planner for the Peak District National Park, said:
“There is a definition in the planning practice guidance for minerals, which relates a bit more to the operation of fracking. It would be helpful if the two were possibly combined in some way and there was consensus in trying to get agreement over one definition.”
Andrew Mullaney said the effect of fracking was what really concerned planning authorities, rather than the definition:
“It is the impacts that matter: the number of HGV movements and the night-time noise levels. It is those levels that we need to assess, and the environmental impact regulations are a good enough tool for us to do that. I am personally not too bothered about the definition. We can get hung up on it. What ultimately matters is the impact on people.”
Executives from the Environment Agency and Health and Safety Executive said the definition made no difference to them.
Set back distances
A planning inspector has supported the concept in the North Yorkshire Draft Minerals Plan of separation distances between fracking sites and homes and a buffer zone around the edge of protected areas.
Richard Flinton said:
“We pulled together that suite of measures, which we believe enables the industry to take place, is in line with recognising the value of mineral extraction, tempers the level that the industry will reach in order to enable those other qualities of life but also factors local existing jobs taking place.”
The industry has threatened to challenge the setback distances in the courts.
Andrew Mullaney said Lancashire had been following “very closely” what was happening in North Yorkshire, particularly around the buffer zone. But he said it was not “as seismic a policy shift as people are making out.”
“If you can demonstrate the night-time noise is acceptable, it [the setback distance] might only be 150 metres away from a dwelling. If you can demonstrate it is acceptable, it passes the North Yorkshire test.”
Nicola Howarth said:
“We would support a mandatory offset distance away from residential development and sensitive receptors. It does advocate that in planning practice guidance but it tends to be on a site-specific basis. If it was included in the national policy then that would reinforce that policy direction and NPAs could impose a buffer.“
Matt Lambert, of Cuadrilla, at the previous committee hearing, had said councillors were often under pressure to concern themselves with sub-surface issues that were dealt with other regulators.
Andrew Mullaney responded:
“It is important that we consider, and that the planning authority is satisfied with, things like groundwater impact, even though that is controlled by the Environment Agency, and seismicity.
“In fact, paragraph 120 of the National Planning Policy Framework directs us to do that; it directs us to look at planning and pollution control issues. If you look at paragraph 122, after that, it says not to try to duplicate the controls of other bodies, but you have to consider those things. It is a subtle but important difference. We have to consider, we have to be satisfied but we should not duplicate the controls.”
Nicola Howarth added:
“As mineral planning authorities, we should consider sub-surface matters where it relates to the operational use of the land and where it is material to the planning determination.”
The committee asked the officers about proposed changes to the National Planning Policy Framework.
Andrew Mullaney said there was an inconsistency between the new draft, which says mineral planning authorities should recognise the benefits of shale gas, and a written ministerial made in August 2015, which said there was a national need to explore and develop shale gas and oil resources in a safe, sustainable and timely way.
“There is a slight difference in emphasis between the two. One of the first things we would like to see is more consistency between the two: which is carrying more weight? Is it the NPPF? Is it the written ministerial statement? When we are coming to determine applications or we are involved in planning inquiries, one of the key questions we have is about which one is more important and which one trumps the other, if at all.”
Sally Gill said
“It would be very useful to have a bit more clarity in the NPPF, so that, as planning authorities dealing with applications, we know how the guidance is expecting us to treat shale applications. From Nottinghamshire’s perspective, a shale gas application is a minerals application like any other minerals application.”
Nicola Howarth called for more detail in the guidance:
“We would also like for it to include national policy on climate change and the Government’s energy policy. It should really include best-practice measures and learning that has accrued so far, in terms of onshore oil and gas exploration. At the moment, it lacks that detail.
“Previously it used to advise authorities on how to assess the impacts of major developments. It also provided technical guidance so that you could quantify those impacts and apportion weight appropriately. There is kind of a policy vacuum in that sense; it no longer provides that.”
Andrew Mullaney said there seemed to be inconsistency between national policy in its climate change ambitions and the importance it attached to shale gas.
“The written ministerial statement says there is a need for gas and it is important but, on the other hand, we have things like the Clean Growth Strategy.
“As a planner, I am left wondering where we go with this. On the one hand, we seem to be asked to reduce CO2 but, on the other, this need for gas obviously results in CO2 emissions.”
Public Health England issued a report in 2014 on the potential public health impacts of exposures to chemical and radioactive pollutants in the shale gas extraction process. It concluded “the potential risks to public health from exposure to the emissions associated with shale gas extraction will be low if the operations are properly run and regulated.”
Andrew Mullaney called for an updated version:
“It has been four years since that. We get a lot of opposition groups all the time saying there has been this report and that report. If that Public Health England report was updated and in turn that underpinned some revised government guidance on planning,public health and fracking, that would be helpful.”
Sally Gill added:
“It is very important, if there is new information that becomes available relating to shale gas, that any guidance or documentation is updated. Any work consolidating or even listing information needs to build in a mechanism to review and update, so that when we are making decisions we know we have the up-to-date list of information to look at.”