Regulation

News updates Day 12: IGas Ellesmere Port inquiry

Ellesmere Port Portside well site

Site (outlined in red) of the IGas Portside North well site at Ellemere Port. Source: planning application to Cheshire West and Chester Council

This post has news updates from the final day of the public inquiry into IGas plans to test its well at Ellesmere Port.

Giles Cannock, the barrister, for IGas, made his closing arguments and the inspector, Brian Cook, explained what happens now.

You can catch up on reports from the rest of the inquiry here.


Key points made by IGas

  • Council reason for refusal lacks merit
  • Council “has been making up their case as they have been going along”
  • Opposition to a proposal is not a material consideration
  • The flow test proposal complies with local policies ENV7 and STRAT1
  • Flaring of flow test gas is best available technique
  • “Nothing turns on miscalculation of emissions from Ellesmere Port
  • Uncertainty about UK shale gas is to be addressed by exploration and monitoring
  • The government takes account of carbon emissions
  • Onshore oil and gas development support the transition to a low carbon economy
  • The impact of greenhouse gas emissions is outweighed by the need for gas
  • Very limited weight should be attached to claims of fear and anxiety of the development
  • The IGas scheme does not conflict with regeneration plans

IGas closing submissions

Mr Cannock tells the inquiry the Cheshire West and Chester Council case “has been significantly impaired” because none of its witnesses “had any understanding of the basis on which planning permission had been refused.

He says:

“In truth, the MPA’s [mineral planning authority’s] case has changed beyond recognition over time. That betrays a fundamental lack of merit in the refusal.”

The council refused planning permission on 26 January 2018, against the advice of planning officers. None of the statutory consultees had objected, Mr Cannock says.

IGas did not consider the reasons for refusal to be clear, Mr Cannock says. He suggested that the council case officer did not understand the reasons.

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Giles Cannock,, barrister for IGas, at the Ellesmere Port inquiry. Photo: DrillOrDrop

The council contracted HOW Planning consultants to develop its statement of case, Mr Cannock says. For the first time, the council raised the issue of conflict with the Ellesmere Port regeneration plan and conflicts with the council’s strategic and local plans.

The council’s statement of case “unreasonably raises issues that are no part of the MPA’s case, simply because the basis of the reasons for refusal are not clear”.

The statement of case also raises issues that were not part of the council’s case, Mr Cannock says.

“the basis of the reasons for refusal was totally unclear to the Appellant, the Case Officer, HOW Planning and the representatives of the Mineral planning authority who signed it off.”

It did not refer to reports by the Committee on Climate Change and the Intergovernmental Panel on Climate Change that were “apparently” a central part of the decision, Mr Cannock says.

“The only explanation is that the Members of the Planning Committee had no clear and respectable basis for their refusal. Rather, the MPA has been making up their case as they have been going along.”

The case at the inquiry bears no relationship to the statement of case, Mr Cannock adds.

“Such disarray is the antithesis of how the development control system should operate amongst responsible Planning Authorities.”

Mr Cannock says a supplemental statement of case, written by Roger Griffiths QC, barrister for the council, pre-dated evidence on greenhouse gas emissions from Dr Balcombe and Dr Broderick.

This said IGas had failed to mitigate and adapt to the effects of climate change and required an explanation on what it steps it had taken.

Mr Cannock says:

“It is therefore beyond doubt that the “real issue” (in the sole reason for refusal) is whether the Appellant has proposed appropriate mitigation techniques for shale gas exploration.”

Mr Cannock says significant parts of evidence by the council’s climate change experts were “irreconcilably inconsistent with the position of the mineral planning authority; evidence from the council’s planning witness; and local and national planning and energy policy.

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IGas site at Ellesmere Port, 21 January 2019. Photo: DrillOrDrop


Flawed legal decision

Mr Cannock says decisions on planning applications is not a democratic decision.

“The level of support or opposition for a proposal (the will of the people) is not a material consideration.”

He says Mineral Planning Authorities and planning inspectors apply a legal test, not a democratic decision. In the IGas case, he says, the council has “refused consent on a flawed legal basis”.


Planning policy

Mr Cannock says the Cheshire West and Chester Local Plan was adopted in 2015, after the publication of then existing version of the National Planning Policy Framework, which, he said, strongly supported onshore oil and gas development.

Policy ENV7

This policy seeks to exploit “alternative hydrocarbon resource” and so supports the IGas proposal, Mr Cannock says.

He says this policy is consistent with the NPPF and national energy policy.

IGas operation is targeted at an alternative hydrocarbon resource but this does not mean that unconventional techniques will, or need to be employed during exploration.

Mr Cannock says national planning policy recognises shale gas development as nationally important. The revised NPPF, published in July 2018, recognises the benefits of onshore gas development as a transition to a low carbon economy, he adds.

He says ENV 7 is consistent with the NPPF. The inspector should give full weight to the IGas scheme’s compliance with both policies.

Policy STRAT 1

Mr Cannnock says this strategic policy requires all development proposals to “mitigate and adapt to the effects of climate change”.

Mr Cannock says the council’s witness told the inquiry that STRAT 1 could not be used to refuse planning permission because of the strong support for exploration in principle in ENV 7.

He says the report by the Committee on Climate Change on the compatibility of shale gas with UK climate obligations had been “fundamentally misread, and therefore misapplied” by the council and Frack Free Ellesmere Port and Upton.

The report distinguishes between exploration and production and has relatively limited information on exploration, Mr Cannock says. The IGas scheme is for exploration, he adds.

The Committee on Climate Change (CCC) said emissions from exploration could not be assumed to be low and appropriate mitigation techniques should be employed where practical, Mr Cannock says.

The CCC report supports IGas evidence that the scheme should be considered acceptable provided appropriate mitigation techniques are employed, where practical, he adds.

Three tests proposed by the CCC do not apply at exploration, Mr Cannock says.

Mr Cannock says Cheshire’s supplementary planning document, adopted in May 2017, requires gas to be used where possible and flaring and eventing should be kept to a minimum that is technically, economically and environmentally justified.

The industry body, UK Onshore Oil and Gas, also requires operators to minimise emissions. But it says green completions, where gas is used, may not always be practical and exploration or appraisal.

Mr Cannock says STRAT 1 does not require all developments to have net zero emissions but to minimise emissions, consistent with the CCC report, the SPD and UKOOG guidelines and Best Available Techniques.

He says:

“If the proposal complies with BAT, the proposal complies with the development plan and planning permission should be granted.”

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IGas site at Ellesmere Port, 21 January 2019. Photo: DrillOrDrop


Environmental permit

Mr Cannock says the NPPF says planning decisions should assume that other regulator regimes will operate effectively. Planners can rely on the advice of regulatory experts, Mr Cannock says.

He says current case law means that “significant weight should attach to the conclusion of the statutory regulator, to which the MPA was a consultee, especially in the absence of any robust evidence to the contrary”

The council’s planning witness conceded that the matter of whether emissions had been adequately mitigated by Best Available Technique was a matter which had been address by the permit, Mr Cannock says. He adds:

“the Inspector may (not must) consider that matters of regulatory control could be left to the statutory regulatory authorities to consider.”

Mr Cannock says the council’s planning witness had conceded that councillors refused planning permission because they wanted more information that was publicly available and the remit of the Environment Agency. This is the definition of unreasonable behaviour, Mr Cannock says.


Mitigation of emissions

Ellesmere-Port-tanks-FFEP Slider

IGas site at Ellesmere Port. Photo: Frack Free Ellesmere Port and Upton.

Mr Cannock says the key issue is whether flaring during the extended well test minimises emissions of gas, so far as reasonably practical, applying best available techniques.

An emissions expert for the council made what Mr Cannock describes as a “bald assertion” that gas capture is feasible. But the witness has not provided detail, Mr Cannock says. IGas says gas capture, either exporting to the grid or by tanker, is neither feasible nor safe”, Mr Cannock says. This means it is not considered best available technique for the extended well test.

He says the council now concedes there is no acceptable mitigation, while the Environment Agency regards flaring is best available technique.

Mr Cannock says adequate information has been submitted, the proposal complies with the development plan and planning permission should be granted.


Greenhouse gas emission calculations

IGas underestimated emissions at the Ellesmere Port site during the well test by 4.8%, Mr Cannock says. But concludes “nothing turns on this miscalculation”.

He dismisses suggestions that the Environment Agency conclusions on what is best available technique cannot be relied on because of the error. He says total emissions are “inherently uncertain given the nature of exploration”.

Mr Cannock says UK climate change policy is determined by the Climate Change Act 2008 and the Paris Agreement of 2015.

He says the government strongly supports the exploration of shale gas resources. It agrees with the Committee on Climate Change that uncertainty exists and that exploration is required to determine the potential of both the size of a UK shale industry and its emissions footprint.

“The response to uncertainty over emissions was not a moratorium. Rather, such uncertainty was to be addressed by exploration and monitoring.”

Mr Cannock says the Committee on Climate Change report on shale gas and the government’s response to it “strongly support” the IGas proposal.


National energy policy

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IGas Ellesmere Port well site. Photo: DrillOrDrop

Mr Cannock says national energy policy states:

“The UK must have safe, secure and affordable supplies of energy with carbon emissions levels that are consistent with the carbon budgets defined in our CCA [Climate Change Act] and our international obligations. We believe that gas has a key part to play in meeting these objectives both currently and in the future.”

The policy recognises that gas makes up around one-third of current energy usage and all scenarios on emissions reductions include demand for gas.

The UK should explore the potential for onshore gas production from shale rock where it is economically efficient and robustly regulated, Mr Cannock reports.

He says

“the government expressly takes account of carbon emissions levels, the Climate Change Act and the Paris Agreement”.

The NPPF also supports the transition to a low carbon future, Mr Cannock says, but additional recognises the benefits of onshore gas development.

He says mineral planning authorities are required under paragraph 209a to “put in place policies to facilitate” exploration and extraction of onshore hydrocarbons.

Reading these documents, Mr Cannock says:

“it is beyond dispute that the Government considers that onshore development supports the transition to a low carbon economy in a changing climate, in the light of the Climate Change Act.”

He says suggesting that onshore development of gas is inconsistent with the Climate Change Act and the Paris Agreement makes paragraph 209 of the NPPF useless.

Mr Cannock adds that sections of the NPPF he has quoted are consistent and the NPPF is consistent with National Energy Policy.

While Mr Cannock was talking, the High Court ruled that the government had acted unlawfully in failing to take into account scientific evidence when it reviewed the NPPF last year.

On calls from the Intergovernmental Panel on Climate Change to limit warming to 1.5C, Mr Cannock says:

“It is simply not for this Inspector to “lead the way” and/or anticipate what the CCC may recommend and/or what the Government may do by response and/or what Parliament may decide on any proposed amendment to the 2050 target. It follows that only very limited weight can attach to the Government’s future legal and/or policy response to the IPCC Report.”

In contrast, he says, there is no suggestion that national energy policy and the NPPF should not be afford full weight. He concludes:

“Reading NPPF and NEP [national energy policy] as a whole, it is quite clear that the Government considers the impact of GHG emissions is outweighed by the need for gas.”

This should be applied to the IGas site, he says.

The IPCC is just one consideration in the formulation of future carbon budgets, Mr Cannock says. They should also consider security of supply, affordability and economic growth.

Mr Cannock says the Ellesmere Port would “result in the inevitable release of greenhouse gas emissions but they have been minimised by flaring, the best available technique, they are no more than expected on any exploratory well and lower than that at Preston New Road.


Council and campaign group submissions

Mr Cannock accuses the council of making flawed submissions in its closing arguments. He describes as “fantasy” the suggestion that shale gas is considered premature. He also disputes claims he says were made by the council that the government does not support shale gas until it can be decarbonised. It is also not the government’s position that shale gas is not safe.

He also dismisses criticism that the Ellesmere Port borehole was drilled deeper than had been expected or unlawfully. There is no concern from the council that the well was drilled recklessly.


Current proposal

Mr Cannock says the well test does not propose to use hydraulic fracturing or matrix acidisation. He says the scheme did not need an environmental impact assessment, according to the council screening.

Nothing turns on the description of the target rock as a chert, Mr Cannock says. There is no reason to be concerned about seismicity or an impact on groundwater. He adds:

“the escape of gas will be reduced to the minimum which is reasonably practicable, compliant with the legislation.”

On concerns about hydrogen sulphide, he says:

“It is a risk which must be managed. It is not, however, a risk which is likely to be encountered at this site.”

On public health, he says there have been no issues raised about the impacts from smell, lighting, noise or dust.

On air quality, Mr Cannock says neither local nor national policy requires there to be no impact on air quality. Instead it requires developers to comply with limits or national objectives. He says IGas had provided evidence that there would be no material adverse impact on air quality.

He says:

“If the emission limits are met, the impact to the health of vulnerable people in deprived areas is acceptable and they do not suffer any ‘disproportionate impact’”.

The Environment Agency issued a permit based on an assessment that the nearest homes were 700-500m away from the site. Since then, homes have been built 350m away. Mr Cannock says is appropriate for the council to reconsider the significance of this change.


Public perception and fear

181210 Ellesmere Port map

Map compiled by Frack Free Ellesmere Port and Upton showing the location of the IGas site and local amenities

Mr Cannock says case law concludes that public concern must be recognised as a material consideration. But he says baseless, perceived risks can be afforded very little weight.

He says:

“very limited weight should attach to the claimed fear/anxiety caused by this development.”

He describes evidence for Frack Free Ellesmere Port and Upton on public fears as “extraordinary”. He says the analysis is “hopelessly flawed” and accuses the group’s witness of fomenting, rather than reporting fears. There is no merit in the evidence about social harm, he adds.


Regeneration

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Ellesmere Port waterside regeneration area, 21 January 2019. Photo: DrillOrDrop

Mr Cannock says there is no evidence that the well test would harm any regeneration development.

He says the area around the site is proposed to be developed into a port facility, rather than housing and mixed use, as proposed in an Ellesmere Port vision document. He says:

“There is (literally) not a shred of evidence that there is intention and/or funding for any part of this significant development programme. There is no evidence of viability. Indeed, Peel Holdings (the landowner) was clear the scheme was unviable even without land assembly. There is no identified developer willing to take on this Herculean project.”

He says there is “no conceivable conflict with policy” on landscape and visual amenity. There is no “substantive biodiversity issue”, he says.


IGas conclusion

Mr Cannock concludes that the schemes complies with the Development Plan and is supported by national policy. He says planning permission should be granted subject to conditions.


 

Inspector’s comments

The planning inspector, Brian Cook, says the inquiry won’t close today because the parties will be making submissions about a ruling today on the government’s support for shale gas (DrillOrDrop report).

Estelle Dehon, the barrister for Frack Free Ellesmere Port and Upton, recommends that the inspector reads the Mobbs Report, which is at the centre of today’s High Court ruling.

They are also to submit applications for costs.

They have 14 days to submit their documents.

Mr Cook also says he will contact Natural England over whether a habitats assessment is needed, if he is minded to grant permission.

He says it will be at least a month before he can issue his decision.

Anticipating a possible court challenge he says he will be writing his report for the inquiry participants but also for a high court judge.

He thanks the participants and organisers at the inquiry. Of the people who attended the inquiry, he says:

“you have demonstrated that being passionate about something and respectful and good humoured are not mutually exclusive”

He says:

“It is the nature of the process that some people are going to be happy and some people are going to be disappointed and I don’t know which is going to be which. That is something I have got to consider when I re-read the evidence in the light of the three closing submissions that I have received.”

1 reply »

  1. Mr Cannock’s (iGas barrister) arguments are on a flawed legal basis after the ruling by Justice Dove on the government’s unlawful adoption of the NPPF and the claim it needs to happen to transition to a low carbon economy which isn’t substantiated by current science.

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