Opposition

Government accused of breaking its own guidelines on shale gas consultation

181008 fracking Beis HL_AGROSDIDIER_LONDON_ACTION_PERMITTED_DEVELOPMENT-29

Protest outside the Department of Business, Energy and Industrial Strategy over government plans to fast-track fracking, 8 October 2018. Photo: H L Agrosdidier

An anti-fracking campaign group has lodged a formal complaint against the government over a public consultation on changing the planning rules for shale gas drilling.

Frack Free United said the consultation, which ended in October 2018, broke three of the government’s own guidelines.

The consultation centred on a government proposal to allow non-fracking shale gas exploration to be treated as permitted development. This would bypass the normal planning application process and was designed to speed-up shale gas projects.

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The proposal was opposed by many Conservative MPs and councillors. The government was warned that it did not have the votes in the House of Commons to push it through. A petition with more than 300,000 signatures was presented to the Ministry of Housing, Communities and Local Government.

The consultation said it was seeking opinions on the principle of applying permitted development. But Steve Mason, of Frack Free United, said it was “biased”, “fundamentally flawed” and “made a mockery of our right to express our views in a fair manner”.

He told DrillOrDrop:

“We felt we had to lodge a complaint. The framing of the questions and the terminology left a lot to be desired.

“We oppose fracking and this made a mockery of our right to express our views in a fair manner.

“We feel we managed to offer advice but to the average man in the street, it would have been quite easy for them to be led into a position of supporting Permitted Development proposals.

“I would encourage people to write to their MPs to lodge similar concerns, and ask they oppose government plans on fracking whenever possible.”

Government guidelines say consultations should:

  • Be easy to understand and answer, using clear, concise plain English and avoiding acronyms
  • Not ask questions about issues on which the government has a final view
  • Give enough information to ensure that those consulted understand the issues and can give informed responses

In correspondence with the Ministry of Communities, Housing and Local Government, Frack Free United said:

“It is clear from the phrasing of most questions in the consultation that the government have already decided that they are in favour of the principle, as they do not provide any opportunity for people opposed to the principle to respond meaningfully to this question.”

The group added that a lack of explanation on one question limited the ability of people who did not work in the oil and gas industry to respond in an informed way.

Frack Free United criticised as “inappropriate” the use of the online tool, SurveyMonkey, to conduct the consultation because it failed to encourage full participation. The group also said design flaws in the survey may have discouraged some people from taking part. Participants did not receive confirmation that they had submitted a response, the group added.

The government defended the consultation, saying “all efforts were made to ensure that the document was as easy to understand as possible”.

It said the consultation had “received collective agreement from other government departments before publication”. It was open to everyone and “gave all the relevant information in the background chapter”, the government said.

In correspondence to Frack Free United, it added:

“We do not agree that the consultation had predetermined the outcome.

“We consider that the consultation was written in a fair and unbiased way which will enable an objective analysis.

“We … consider that no maladministration has taken place.”

Frack Free United described this response as “wholly unsatisfactory”, saying many of its points had not been dealt with.

It said the use of the phrase “section test” in the consultation was not defined in any of the supporting documents. It also described as “an egregious error” the omission of an opportunity for people to explain why they opposed the principle of applying permitted development for shale gas projects.

Frack Free United said it had taken its criticism to the next level in the government’s complaints procedure.

  • DrillOrDrop will follow this case and post updates on developments.

6 replies »

  1. Good for Frack Free United – someone had to complain about this as it was the most biased set of consultation questions I’ve ever seen. For example, one asked how long permitted development should be allowed for, and gave two tick answers of 2 years or 5 years … thus excluding anyone opposed to permitted development from answering the question. It was a joke.

  2. Below the text of a comp,ant lodged with the authority:
    we wish to complain in the strongest possible terms concerning the form of the Consultation on Permitted Development for shale gas exploration, and on the extent to which the Cabinet Office’s 2018 Guidelines on consultation are ignored in the Consultation.

    The Consultation purports to consult on the principle of granting planning permission for non-hydraulic shale gas exploration through a permitted development right, but then immediately abandons the idea of principle and says that it is going to consult on things that assume an acceptance of it.
    “The purpose of this consultation is to seek views on the principle of whether non hydraulic fracturing shale gas exploration development should be granted planning permission through a permitted development right, and in particular the circumstances in which it would be appropriate. ” (Consultation document). (We note that under Scope of the Consultation heading of the Consultation document (P5), the views elicited are on the principle of the first clause above – this is inconsistent with the above statement of purpose.)
    This confusion concerning purpose is compounded by the fact that this, the central question of the Consultation, is left until Question 2. Clearly it should have been the first question, Q1.

    These failings of the Consultation Document clearly contravene in our opinion the first two Principles, A and B, of the Cabinet Office’s Consultation
    Principle A “Consultations should be clear and concise. Use plain English…… . Make (questions) easy to understand and easy to answer.”
    Principle B ” Do not consult for the sake of it….. Do not ask questions about issues on which you already have a final view.”
    The purpose is neither clear, concise, easy to understand, nor to answer, and tends to predispose the consultee in favour of a result

    Of the Consultation questions themselves, most assume that the principle referred to in the statement of purpose has been accepted.

    Q1a Do you agree with this definition (para 21) to limit a permitted development right to non-hydraulic fracturing shale gas exploration.

    This question moreover is syntactically and semantically obscure. We are still not sure we understand it.
    What is the sense of “a definition to limit”?
    Why is a definition of “non- hydraulic fracturing shale gas exploration” required? This seems deliberately obfuscatory. What else could the terms in inverted commas mean, other than search for shale gas without the use of hydraulic fracturing?

    Q1b clearly contravenes Consultation Principle C (CP C). The consultee is asked for an alternative definition to that offered in para 21, and yet no information is given which would enable an informed response. CP A is also contravened, Q1b lacking in clarity and difficult to answer.
    Principle C “Consultations should be informative. Give enough information to ensure that those consulted understand the issues and can give informed responses.”

    Q2, Should non-hydraulic fracturing shale gas exploration development be granted planning permission through a permitted development right? Notwithstanding its confusing placing, although clearly the central question, this appears clear and concise, etc. and indeed innocuous, until one realises that definition of hydraulic fracturing is nowhere provided. Furthermore, the Yes/No permitted answers conceal this fact, allowing no qualification in a situation where one’s answer might well be different according to one’s interpretation of this phrase and therefore the question. (See below**).

    The Consultation should have made it clear at this point that if the response to Q2 were negative, the remaining questions should be left unanswered. We can point to a genuine fear amongst respondents that a failure to answer all questions might invalidate the response.

    Q3a Do you agree that a permitted development right for non-hydraulic fracturing shale gas exploration would not apply to the following?
    At this point the sudden request for a positive response is off- putting and confusing if one has answered negatively to Q2.
    Furthermore, the examples given, eg. AONB, ….Safety hazard areas, Military explosive areas, etc. will obviously attract affirmative answers. Thus they seem designed to lull the respondent into believing that he/she is making a positive democratic contribution to a real consultation. CP B is here contravened.

    Q4 What conditions and restrictions would be appropriate for a permitted development right for non-hydraulic shale gas exploration development?

    This question does not adhere to the guidelines set out in CP A, B or C. It is not easy to understand or answer calling for specialist knowledge and expertise; it is a question posed ‘for the sake of it’, seeking to justify Q3. It does not provide “enough information to ensure that those consulted understand the issues and can give informed responses: once again, it assumes tacit acceptance of the principle.

    Q5 Do you have comments on the potential considerations that a developer should apply to the local planning authority for a determination, before beginning the development?

    In contravention of CP A and C, this question merits a complaint similar to ours to Q4. Here, as previously pointed out, the lack of clarity is apparent in the clumsy syntax of the question as phrased.

    Q6 Should a permitted development right for non-hydraulic fracturing shale gas exploration development only apply for 2 years, or be made permanent?

    Again, implicit in the question is an assumption perhaps not discernible to the respondent that the principle of a PD referring to shale exploration is accepted, and this notwithstanding the respondent’s answer to Q2.
    .

    We suggest in sum that the consultation is far from “clear and concise”, or indeed “easy to understand and easy to answer”. Given the aims of the consultation, most of the questions are irrelevant and serve to obfuscate. Nor is it clear what ‘development’ refers to, exploration or extraction? No definition is provided of hydraulic fracturing or of ‘section test’. In particular,
    **If the definition of hydraulic fracturing under ‘purpose of this consultation'(above) is tacitly that of the Infrastructure Act 2015 , then the ‘non-hydraulic fracturing of the consultation’s purpose would be considered by many if not all consultees to be hydraulic fracturing. In other words, the consultation seeks approval for fracking even at the exploratory stage. This amounts to subterfuge so blatant is seems deliberate. This failure to define crucial terms works to the disadvantage of consultees and calls into question the good faith of the Consultation.

    This constitutes a monstrous distortion of the very principle of a consultation, viz. to seek a considered view on a proposal. By playing semantic ( definition of hydraulic fracturing) and syntactic ( not agreeing with a negative) games, this question – the central question of the Consultation – effectively invalidates the Consultation.
    The responses required for several questions call for mental gymnastics which discourages participation in the consultation and fly in the face of the clarity normally afforded by English syntax. The Yes/No nature of some of the responses required discourages or prevents elucidation of the response unless this tends in the direction favoured by the questioner.

    Finally, CP 5 requires that questions should be targeted, and yet some only found out about the Consultation indirectly. The Parush Council was not informed of its existence. This is not an isolated case and calls into question the intention of the Consultors to implement a democratic consultation. This failure democratically to target is in blatant contravention of CP F.
    Principle F “Consultations should be targeted. Consider the full range of people, business and voluntary bodies affected by the policy…”

    We protest most strongly against these contraventions of the Cabinet’s own Consultation Principles. We deplore the obscuring of the central question by its placing and by the incorporation into this central question of questions extraneous to it which require acceptance of the principle being consulted upon.

    We look forward to your response to the various points raised in this letter of complaint and would be interested in learning how you intend to raise this complaint with those responsible.

  3. I haven’t heard that one before – have our government come up with a new word to surmerise their behaviour?

    *** maladministration ***
    ? ? ?

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