CWaC Working Group Meeting 1 Regulatory Background : Friends of the Earth Planning & unconventional oil and gas in England

By March 4, 2015 News No Comments

 

In Friends of the Earth’s view unconventional gas exploration, extraction and production is incompatible with:

  • Reducing our carbon emissions to levels that reduce climate risks
  • The precautionary approach to protecting our environment (in particular groundwater)
  • The need to develop long term sustainable low cost and community owned renewable energy resources (wind, wave and sun)

 

What is the regulatory framework?

In England, the land use planning system and the pollution permit system are both part of the regulatory framework for hydrocarbon minerals developments using unconventional techniques. Legislation and guidance on planning is overseen by the Department for Communities and Local Government, and pollution permits are given out by the Environment Agency, covering mining waste, radioactivity, emissions and groundwater protection, which is associated with the Department for Environment, Food and Rural Affairs. Other regulation is governed by the Department for Energy and Climate Change in issuing licences for exploitation of hydrocarbons, and by the Health and Safety Executive, who oversee the design and construction of wells.

Who is making the decision?

The first tier is the licensing process whereby DECC issue a license for hydrocarbon exploration to a developer. This developer must then apply for planning permission.

As land-use development decisions are made in England by the council (the upper tier if you are in a two tier area), democratically elected councillors have an important role to play at local government level. Friends of the Earth do not think that it is appropriate that these highly contentious decisions are delegated to officers.

Local planning decisions must have regard to local minerals plans and must take national planning policy into account, alongside other material considerations.

Consent for land use development must include the under land activities (Section 55, TCPA 1990). The Government has updated the online planning practice guidance to make it clear that planning applications must show the extent of the underground activity1.

 

Why should climate change be considered when making the decision?

Section 39(2) of the Planning and Compulsory Purchase Act 2004 makes it a statutory duty for authorities to act with the objective of achieving sustainable development in terms of plans. Section 19(1A) of the Planning and Compulsory Purchase Act 2004 states: “Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change.” Section 1(1) of the Climate Change Act 2008 provides that it is the duty of the Secretary of State to to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.

According to the National Planning Policy Framework 2012, the planning system “has a key role to plan in helping shape places to secure radical reductions in greenhouse gas emissions.” (Paragraph 93). Paragraph 94 the NPPF encourages the development of “proactive strategies to mitigate and adapt to climate change, taking full account of flood risk, coastal change and water supply and demand considerations.” As explained further in national planning practice guidance for England: “In addition to supporting the delivery of appropriately sited green energy, effective spatial planning is an important part of a successful response to climate change as it can influence the emission of greenhouse gases. In doing so, local planning authorities should ensure that protecting the local environment is properly considered alongside the broader issues of protecting the global environment.”2

In addition, local plans will not be found sound unless they tackle climate change proactively: “To be found sound, Local Plans will need to reflect this principle [addressing climate change] and enable the delivery of sustainable development in accordance with the policies in the National Planning Policy Framework. These include the requirements for local authorities to adopt proactive strategies to mitigate and adapt to climate change in line with the provisions and objectives of the Climate Change Act 2008 and co-operate to deliver strategic priorities which include climate change.”3

In terms of taking climate change into account in decision-taking, Baroness Hanham, speaking on behalf of the Government with regard to the Growth and Infrastructure Bill debate in 2013 said: “We want to ensure that new development is future-proofed against climate change as decisions are made. As far as I am aware, local authorities would have to take account of climate change where it is relevant under their planning guidance.” (6 February 2013).

This is further supported when the Secretary of State agreed with the Inspector on the Chat Moss Peat Works appeal4 that continued work would “be contrary to policies within the Development Plan which seek to minimise greenhouse gas emissions and to have regard to the need to minimise the impact of development on climate change. He further agreed with the Inspector that this would also be contrary to paragraph 93 of the Framework which also seeks to reduce greenhouse gas emissions.” It is therefore clear that decision-makers must take account of climate change.

The Tyndall Centre’s research into the climate impacts of shale gas exploitation says “while being promoted as a transition route to a low carbon future, none of the available evidence indicates that this is likely to be the case.” (January 2011, Shale gas: a provisional assessment of climate change and environmental impacts). In addition UNEP’s 2012 report said: “increased extraction and use of unconventional gas is likely to be detrimental to efforts to curb climate change”.5

What about the Government’s support for unconventional oil and gas?

The current Government is supportive of unconventional oil and gas development. The planning practice guidance for England therefore promotes the identification of sites6, and makes it clear that “energy supplies should come from a variety of sources.”7 However this has to be set against the duty of the local decision-maker as illustrated above to ensure that their local plan and decisions on applications properly take into account climate change. While local authorities are directed to consider that energy supplies should be from a variety of sources, they could well take the position that unconventional oil and gas requires a precautionary approach that is in line with the need for their local plan to meet climate change emissions reduction ambitions. This position is supported by the recital to the European Renewable Directive 2009 which states that planning structures and legislation should “take into account the contribution of renewable energy sources towards meeting environmental and climate change objectives, in particular when compared to non-renewable energy installations8.

Friends of the Earth is of the view that unconventional oil and gas exploration is:

  • incompatible with the need to tackle climate change;
  • unnecessary given the availability of renewable energy resources;
  • incompatible with the precautionary principle;
  • incompatible with long term energy security and resilience;
  • inconsistent with the principle of enabling communities to own clean and safe sources of renewable energy.

What is the precautionary principle?

The application of the precautionary principle – for instance to groundwater – means that unless it can be proven that there will be no groundwater contamination a development should not go ahead.

The National Planning Policy Framework 2012 in its preamble lists the five principles of sustainable development as set out in the UK 2005 strategy – including using “sound science responsibly”9 which was further explained at the time of its publication to mean: “Ensuring policy is developed and implemented on the basis of strong scientific evidence, whilst taking into account scientific uncertainty (through the precautionary principle) as well as public attitudes and values.”10

Planning practice guidance for England also references the precautionary principle in relation to Environmental Impact Assessment: “the local planning authority must have regard to the amount of information available, the precautionary principle and the degree of uncertainty in relation to the environmental impact.”11

The 1992 Rio Declaration on Environment and Development states that, “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. The Interdepartmental Liaison Group on Risk Assessment (ILGRA), in its 2002 paper ‘The Precautionary Principle: Policy and Application’, made a number of important points including noting that the precautionary principle should be invoked when:

  • there is good reason to believe that harmful effects may occur to human, animal or plant health, or to the environment; and
  • the level of scientific uncertainty about the consequences or likelihood of the risk is such that best available scientific advice cannot assess the risk with sufficient confidence to inform decision-making.

There is evidence to support the proposition that shale gas extraction carries with it significant risks of groundwater contamination as for instance covered by the British Geological Society’s paper on this (Potential groundwater impact from exploitation of shale gas in the UK”, Stuart, 2012). This report concludes that “Groundwater may be potentially contaminated by extraction of shale gas both from the constituents of shale gas itself, from the formulation and deep injection of water containing a cocktail of additives used for hydraulic fracturing and from flowback water which may have a high content of saline formation water” (page 19). The BGS report further states that “There are examples of surface water contamination from releases of fracturing water or flowback water. Documented instances of groundwater contamination from the U.S. are all related to the leakage of methane into groundwater.” (page 20). It is therefore essential this is properly recognised in plan-making and development decisions.

How does the precautionary principle apply?

The EU Water Framework Directive and environmental law provide for the precautionary principle to be considered in planning. In addition it is linked to the use of Environmental Impact Assessment.

A summary of the Water Framework Directive is as follows:

The case of groundwater is somewhat different. The presumption in relation to groundwater should broadly be that it should not be polluted at all. …But for general protection, we have taken another approach. It is essentially a precautionary one. It comprises a prohibition on direct discharges to groundwater, and (to cover indirect discharges) a requirement to monitor groundwater bodies so as to detect changes in chemical composition, and to reverse any anthropogenically induced upward pollution trend. Taken together, these should ensure the protection of groundwater from all contamination, according to the principle of minimum anthropogenic impact.

(Water Framework Directive: http://ec.europa.eu/environment/water/water-framework/info/intro_en.htm)

This approach is also reflected in the Groundwater Directive which prohibits the input of “hazardous substances” into groundwater. This should include methane which shale gas companies are drilling for as well as the other chemicals used in the unconventional hydraulic fracturing process.

Independent legal advice obtained by Friends of the Earth has pointed out that the quantities of water which are required to facilitate shale gas extraction are significant, and engage the statutory duties of the Secretary of State, as well as the duties of planning authorities in the NPPF, to conserve and improve the water supply. This is also reflected in the planning practice guidance on developments that have not been included in the local plan and are likely to require a large amount of water12 – which states that the implications should be considered by the local authority.

How are other environmental issues considered in planning?

The National Planning Policy Framework 2012 sets out in relation to minerals extraction that local authorities should (paragraph 143)

“set out environmental criteria, in line with the policies in this Framework, against which planning applications will be assessed so as to ensure that permitted operations do not have unacceptable adverse impacts on the natural and historic environment or human health, including from noise, dust, visual intrusion, traffic, tip- and quarry-slope stability, differential settlement of quarry backfill, mining subsidence, increased flood risk, impacts on the flow and quantity of surface and groundwater and migration of contamination from the site; and take into account the cumulative effects of multiple impacts from individual sites and/or a number of sites in a locality;”

Local evidence from communities and evidence from the environmental impact assessment is key here to informing the local planning authorities’ assessment of the application. In addition, these issues must be reflected in any conditions attached to the decision notice.

Under the presumption in favour of ‘sustainable development’ introduced by this Government, local planning authorities may refuse development if granting permission would have adverse impacts that significantly and demonstrably outweigh the benefits “when assessed against the policies in this Framework taken as a whole; or– specific policies in this Framework indicate development should be restricted.”13 Therefore the local planning authority has to make the case in order to refuse any development – with as much evidence as possible.

Is an Environmental Impact Assessment required?

Planning practice guidance in England states that “An Environmental Impact Assessment is therefore required if the project is likely to have significant environmental effects.”14

There is a serious lack of information in the applications that are coming forward and therefore local authorities should be strongly encouraged to demand an Environmental Impact Assessment (EIA) to assess impacts on soils, water and air. It is vital for the public interest that risks are properly understood before decisions are made. The EC studies on unconventional gas has also made specific reference to cumulative impacts15. Planning practice guidance states: “The local planning authorities should always have regard to the possible cumulative effects arising from any existing or approved development.16

What other conditions can a local planning authority set?

The planning authority must ensure that it has sufficient environmental impact information at its disposal in order to formulate conditions that protect the public and the environment.

These should cover water, soils, air emissions, traffic movements, noise, dust, lighting and aftercare and restoration. It is vital, given the unconventional nature of the technology, that liability and risk are fully catered for financially as well as through conditions.

The Decision Notice is a key document in controlling what has actually been given permission. If these are vague then it becomes difficult to enforce or to be clear about what development is and isn’t permitted.

What should the planning application look like?

The planning application should include a red line site boundary for the development. Friends of the Earth have argued that Section 55 of the Town and Country Planning Act 1990 clearly says that development means “underland” activities. The Government planning guidance for England says that “A distinction should be made in the location plan between those areas where surface works are proposed and those where only underground operations are proposed to take place. The location plan should identify the surface area of the application site by edging it clearly with a red line. A dotted red line should edge the likely extent (including length and direction) of any lateral boreholes. The underground area should be indicated even where it is within the area of the surface workings.17 Note that Environmental Impact Assessment can cover a larger area than the site boundary (as the impacts may be well beyond the site boundary). It is very important that the local authority has sufficient information at its disposal to make a sound decision. The Government has consistently argued for less information to be required but in this instance, as the impacts are unknown, local authorities should require detailed information particularly about geology, previous workings, hydrogeology, transport impacts (trucking water and chemicals to and from site), emissions to air, and nearby land uses (local context) and environment. While the Government has tried to minimise Environmental Impact Assessment requirements, essentially the local planning authority must be able to give evidence for its decision and for conditions within the decision notice (which will normally cover transport movements, controlling of flaring and venting, and control of the site itself in terms of design, layout, storage etc).

What other permits are required?

As well as the planning permission, developers currently may need radioactive waste permits, groundwater permits and permits under the Mining Waste Directive, which are issued by the Environment Agency and undergo consultation.

What is the Government doing wrong?

The Government failed to consult on its planning practice guidance for onshore oil and gas. It has therefore not been tested, nor has the Government issued a response to the feedback it has received despite the lack of consultation. In addition the Government has failed to match its climate change obligations with its approach to unconventional oil and gas, creating a confusing and contradictory position for local planning authorities. The Government is putting local communities at risk through its approach.

References

National Planning Policy Framework 2012 for England

Online planning practice guidance for England http://planningguidance.planningportal.gov.uk/

Contact Naomi Luhde-Thompson, Planning Advisor: naomi.luhde-thompson@foe.co.uk

1 DLCG, Online Planning Practice Guidance, March 2014, Paragraph: 115 Reference ID: 27-115-20140306

2 Ibid, Paragraph: 001 Reference ID: 6-001-20140306

3 Ibid, Paragraph: 001 Reference ID: 6-001-20140306

4 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14967/Chat_Moss.pdf

5 UNEP (2012) ‘Gas fracking: can we safely squeeze the rocks?’

6 Ibid, Paragraph: 108 Reference ID: 27-108-20140306

7 Ibid, Paragraph: 124 Reference ID: 27-124-20140306

8 Recital, Paragraph 42, Renewable Energy Directive 2009

9 Preamble, National Planning Policy Framework 2012

10 Archived: Paragraph A1 to Annex A to PPS 25: The Government’s Aims for Sustainable Development

11 Ibid, Paragraph: 023 Reference ID: 4-023-20140306

12 Ibid, Paragraph: 016 Reference ID: 34-016-20140306

13 Paragraph 14, National Planning Policy Framework 2012

14 Ibid, Paragraph: 119 Reference ID: 27-119-20140306

15 http://ec.europa.eu/energy/studies/energy_en.htm

16 Ibid, Paragraph: 024 Reference ID: 4-024-20140306

17 Ibid, Paragraph: 115 Reference ID: 27-115-20140306