Campaigner Ben Dean argues in this guest post that the single word temporary has cleared the way for oil and gas development in rural areas.
Virtually all planning applications for onshore conventional or unconventional hydrocarbon extraction in the UK are either in the open countryside or Green Belt. An exception is Ellesmere Port, where the public inquiry for the refusal of an application by IGas begins tomorrow (15 January 2019).
Cuadrilla’s shale gas site at Preston New Road near Blackpool is in open countryside. Three shale gas exploration sites earmarked by Ineos in north Derbyshire and south Yorkshire are all in the Green Belt. So are the Ince Marshes in Cheshire, chosen by IGas for fracking and the British Geological Survey for its geo-observatory.
So how does the oil and gas industry get planning permission on open countryside and Green Belt land when virtually all other planning applications, except agriculture, would be refused?
The simple answer is onshore hydrocarbon applications are made on the basis that the developments are only temporary.
As the applications are temporary – with the land to be restored post development – the planning officer, planning committee or a planning inspector, can grant permission on the understanding that there is no long-term harm.
I believe this is frankly ridiculous to those residents that may be affected by a hydrocarbon development for the majority, or potentially all, of their lives.
Is 96 years temporary?
As far as I am aware, there is no precisely-defined length of time for temporary when determining a planning decision. There needs to be.
For me something temporary that has a material effect on the quality of my amenity to enjoy my home – a material consideration to be taken in to account when a planning application is considered – is weeks, perhaps months at most. But the planning system interprets temporary as 30-50 years, sometimes even longer.
The temporary timescale is pushed even further when you consider the exploration licensing system, which operates alongside planning permissions for oil and gas.
Licences are granted by the Oil & Gas Authority (OGA), on behalf of the government, to operating companies, allowing them to explore, appraise and produce hydrocarbons. The timescales of the licences potentially give companies even longer to explore and produce hydrocarbons than the temporary planning permissions.
The oldest existing onshore licence for hydrocarbon exploration, CE001, was granted to His Grace the Duke of Devonshire, nearly a century ago, on 26 March 1923.
It covers the Chatsworth Estate in the Peak District National Park and has never been used to extract oil or gas.
The grant of this licence was symbolic, but it remains in place, or extant.
Other historic licences that are still extant date back more than 50 years. The oldest, ML003, granted in 1959, runs until 2033, a term of 74 years – not what I would call temporary.
What’s more, the High Court ruled in 2017 that licences are common law contracts, which can be renegotiated and extended if the two parties – the OGA and the operating company – agree. This decision could push the duration of licences to more than 100+ years.
In North Yorkshire, Third Energy is challenging the meaning of temporary in the Vale of Pickering.
The company has had a licence – PL080 – to explore and produce conventional gas since I1968.
It said last year it was seeking to extend the planning permission for six sites and a gas pipeline until 2035.
The licence is due to expire in 2024 after 56 years. But if the company is successful in extending the planning permission, the licence is also likely to be extended, taking the total duration to 70 years.
I believe this temporary timescale is not acceptable to a local community, subjected to the industrialisation of its open countryside or Green Belt.
There is no parliamentary statutory instrument that limits a licence term to a finite term and present case law states that licences are common law contracts of undeterminable length.
My view is that the planning system should not be looking at onshore hydrocarbon applications as temporary development.
If planners removed the presumption that oil and gas sites were temporary and assumed instead that they were potentially permanent developments in the open countryside or Green Belt, this would move the default position to an automatic refusal, with no prospective grounds for appeal.
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