Legislation and guidance used by the South Downs National Park Authority when considering Celtique Energie’s application to drill for oil at Fernhurst
1. National legislation and guidance
1a Environment Act 1995, Clause 61
This defines the purposes of National Parks as:
- conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection;
- promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.”
1b English National Parks and the Broads: UK Government Vision and Circular 2010, DEFRA
This defines a vision for National Parks and priorities for the way they deal with energy and mineral applications
By 2030 English National Parks and the Broads will be places where:
- There are thriving, living, working landscapes notable for their natural beauty and cultural heritage. They inspire visitors and local communities to live within environmental limits and to tackle climate change. The wide-range of services they provide (from clean water to sustainable food) are in good condition and valued by society.
- Sustainable development can be seen in action. The communities of the Parks take an active part in decisions about their future. They are known for having been pivotal in the transformation to a low carbon society and sustainable living. Renewable energy, sustainable agriculture, low carbon transport and travel and healthy, prosperous communities have long been the norm.
- Wildlife flourishes and habitats are maintained, restored and expanded and linked effectively to other ecological networks. Woodland cover has increased and all woodlands are sustainably managed, with the right trees in the right places. Landscapes and habitats are managed to create resilience and enable adaptation.
- Everyone can discover the rich variety of England’s natural and historic environment, and have the chance to value them as places for escape, adventure, enjoyment, inspiration and reflection, and a source of national pride and identity. They will be recognised as fundamental to our prosperity and well-being.
Leading the way in adapting to, and mitigating, climate change (4.2)
The Authorities have a role here as exemplars of sustainability in enabling the natural environment to adapt to predicted changes (and being resilient to unpredictable events), in supporting the delivery of ecosystem services21 and in developing more resilient infrastructure (such as rights of way that are less vulnerable to flood damage). This role will be key to the Authorities’ adaptation response (Paragraph 41)
Mineral working in the parks
The Parks are a vital source of some of the minerals that society and the economy needs (section 5.3, Paragraph 141)
1c National Planning Policy Framework, 2013
This defines how applications for oil and gas developments should be handled.
NPPF Paragraph 32
All developments that generate significant amounts of movement should be supported by a Transport Statement or Transport Assessment. Plans and decisions should take account of whether:
- the opportunities for sustainable transport modes have been taken up depending on the nature and location of the site, to reduce the need for major transport infrastructure;
- safe and suitable access to the site can be achieved for all people; and
- improvements can be undertaken within the transport network that cost effectively limit the significant impacts of the development. Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe.
NPPF Paragraph 109
The planning system should contribute to and enhance the natural and local environment by:
- protecting and enhancing valued landscapes, geological conservation interests and soils;
- recognising the wider benefits of ecosystem services;
- minimising impacts on biodiversity and providing net gains in biodiversity where possible, contributing to the Government’s commitment to halt the overall decline in biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;
- preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability;
NPPF Paragraph 115
Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas, and should be given great weight in National Parks and the Broads.
NPPF Paragraph 116
Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:
- the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
- the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
- any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.
NPPF Paragraph 118
When determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:
- if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;
- planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss;
NPPF Paragraph 120
To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account.
NPPF Paragraph 123
Planning policies and decisions should aim to:
- avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development;
- mitigate and reduce to a minimum other adverse impacts27 on health and quality of life arising from noise from new development, including through the use of conditions;
- recognise that development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established;
- identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason.
NPPF Paragraph 132
When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
NPPF Paragraph 134
Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.
NPPF Paragraph 144
When determining planning applications, local planning authorities should:
- give great weight to the benefits of the mineral extraction, including to the economy;
- ensure, in granting planning permission for mineral development, that there are no unacceptable adverse impacts on the natural and historic environment, human health or aviation safety, and take into account the cumulative effect of multiple impacts from individual sites and/or from a number of sites in a locality;
- ensure that any unavoidable noise, dust and particle emissions and any blasting vibrations are controlled, mitigated or removed at source,31 and establish appropriate noise limits for extraction in proximity to noise sensitive properties;
NPPF Paragraph 147
Minerals planning authorities should also when planning for on-shore oil and gas development, including unconventional hydrocarbons, clearly distinguish between the three phases of development (exploration, appraisal and production) and address constraints on production and processing within areas that are licensed for oil and gas exploration or production;
1d Planning Practice Guidance issued 6th March 2014 to accompany NPPF
This added detail on oil and gas applications.
the focus of the planning system should be on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than any control processes, health and safety issues or emissions themselves where these are subject to approval under regimes. Mineral planning authorities should assume that these non-planning regimes will operate effectively.
The principal issues that mineral planning authorities should address, bearing in mind that not all issues will be relevant at every site to the same degree, include:
- noise associated with the operation
- air quality;
- visual impact on the local and wider landscape;
- landscape character;
- archaeological and heritage features (further guidance can be found under the Minerals and Historic Environment Forum’s Practice Guide on mineral extraction and archaeology;
- risk of contamination to land;
- soil resources;
- geological structure;
- impact on best and most versatile agricultural land;
- blast vibration;
- flood risk;
- land stability/subsidence;
- internationally, nationally or locally designated wildlife sites, protected habitats and species, and ecological networks;
- impacts on nationally protected landscapes (National Parks, the Broads and Areas of Outstanding Natural Beauty);
- nationally protected geological and geo-morphological sites and features;
- site restoration and aftercare;
- surface and, in some cases, ground water issues;
- water abstraction
There exist a number of issues which are covered by other regulatory regimes and mineral planning authorities should assume that these regimes will operate effectively. Whilst these issues may be put before mineral planning authorities, they should not need to carry out their own assessment as they can rely on the assessment of other regulatory bodies. However, before granting planning permission they will need to be satisfied that these issues can or will be adequately addressed by taking the advice from the relevant regulatory body. [These include Environment Agency, Department of Energy and Climate Change, Health and Safety Executive and Water companies.-
Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.
When determining applications for subsequent phases, the fact that exploratory drilling has taken place on a particular site is likely to be material in determining the suitability of continuing to use that site only insofar as it establishes the presence of hydrocarbon resources.
Mineral planning authorities should take account of Government energy policy, which makes it clear that energy supplies should come from a variety of sources. This includes onshore oil and gas, as set out in the Government’s Annual Energy Statement (PDF) published in October 2013.
1e Guidance within Minerals PPG, issued 28th July 2014
This added more guidance on applications for oil and gas drilling protected areas.
Where applications represent major development, planning permission should be refused in National Parks, the Broads and Areas of Outstanding Natural Beauty except in exceptional circumstances and where it can be demonstrated they are in the public interest. The assessment that needs to be carried out, including any detrimental effect on the environment, such as the noise and traffic which may be associated with hydraulic fracturing, is set out in paragraph 116 of the National Planning Policy Framework.
1f Annual Energy Statement, 2013
States that energy policy focussed on investing in low carbon energy generation. “However, in managing the transition to a low carbon energy mix, gas (as the cleanest fossil fuel) is expected to continue to play a major role. So continuing to ensure diversity of gas supplies remains important. Growth of unconventional oil and gas, for example, may help to ensure this.”
2. South Downs National Park guidelines
Conserve and enhance the natural beauty and special qualities of the landscape and its setting, in ways that allow it to continue to evolve and become more resilient to the impacts of climate change and other pressures
Protect and enhance tranquillity and dark night skies
The significance of the historic environment is protected from harm, new discoveries are sought and opportunities to reveal its significance are exploited
Manage the highway network and its infrastructure to integrate it more effectively into the landscape and reduce the impact of traffic on communities and visitors
Support training schemes and employment opportunities to ensure balanced communities in the National Park
Promote opportunities for diversified economic activity in the National Park, in particular, where it enhances the special qualities
Support appropriate renewable energy schemes, sustainable resource management and energy efficiency in communities and businesses in the National Park, with the aim of meeting Government climate change targets
By 2050 in the South Downs National Park:
– the iconic English lowland landscapes and heritage will have been conserved and greatly enhanced. These inspirational and distinctive places, where people live, work, farm and relax, are adapting well to the impacts of climate change and other pressures;
– people will understand, value, and look after the vital natural services that the National Park provides. Large areas of high-quality and well-managed habitat will form a network supporting wildlife throughout the landscape;
– opportunities will exist for everyone to discover, enjoy, understand and value the National Park and its special qualities. The relationship between people and landscape will enhance their lives and inspire them to become actively involved in caring for it and using its resources more responsibly;
– its special qualities will underpin the economic and social well-being of the communities in and around it, which will be more self-sustaining and empowered to shape their own future. Its villages and market towns will be thriving centres for residents, visitors and businesses and supporting the wider rural community;
– successful farming, forestry, tourism and other business activities within the National Park will actively contribute to, and derive economic benefit from, its unique identity and special qualities.
Special quality 1: Diverse, inspirational landscapes and breathtaking views
Special quality 3: Tranquil and unspoilt places