CWaC Working Group Meeting 1 Regulatory Background : Naomi Luhde-Thompson, Planning Advisor, Friends of the Earth

By March 4, 2015 News No Comments

I’m Naomi Luhde-Thompson, planning advisor at Friends of the Earth. I have been working at Friends of the Earth for ten years on planning. I would like to focus on the planning part of the regulatory regime, and a little bit about how it fits in with the other regulators, including the Environment Agency and Health and Safety Executive.

The first point that I would like to make is the issue of climate change and the way the local planning authority should consider that when making planning decisions with regard to Unconventional Oil and Gas.

In our view it is pretty clear that the local planning authority does have very clear duties in relation to climate change. Section 39(2) of the Planning and Compulsory Purchase Act makes it a duty to act in relation to plan-making with the objective of achieving sustainable development. Section 19(1)a of the Planning and Compulsory Purchase Act states that “Development plan documents must, taken as a whole, include policies designed to secure that the development and use of land in the local planning authorities area contribute to the mitigation of and adaptation to climate change” and in relation to climate change Section 1(1) of the Climate Change Act provides that “It is a duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline” thus setting a figure to be achieved.

The Secretary of State, Eric Pickles, agreed with the Inspector on climate change in relation to the Chat Moss Peat Works appeal (which was about the continued extraction of peat). He said that “continued work would be contrary to policies within the development plan which seek to minimize greenhouse gas emissions and to have regard to the need to minimize the impact of development on climate change”. He further agreed with the Inspector that this would be contrary to Paragraph 93 of the Framework (the NPPF), which also seeks to reduce greenhouse gas emissions. We are therefore fairly clear, in Friends of the Earth view, that local planning authority decision makers should be considering climate change.

I would also like to talk a little bit about the Precautionary Principle, and the way that is applied by local planning authorities. The Government has published Online Planning Practice Guidance which sits alongside the National Planning Policy Framework, but unfortunately this Online Planning Practice Guidance did not undergo proper public consultation. There was a feedback session, but there was no government response. Originally the Online Planning Practice Guidance was published as Onshore Oil and Gas Guidance in July of last year, without public consultation. This is fairly unprecedented, because normally planning guidance issued by the government is consulted on properly so that evidence can be given and people can have their say about what’s in it, not least planning officers, councillors and MPs.

So therefore we were very concerned about that, however some changes were made to the Online Planning Practice Guidance when it then came online from being a stand-alone document. One of these changes was a reference to the Precautionary Principle in relation to Environmental Impact Assessment. The Precautionary Principle is found in the Rio Declaration on Environment and Development, it’s also a functioning principle of the EU treaty. It is part of how we should frame our environmental policy and it is also part of how we should deal with water protection as part of the Water Framework Directive. This is particularly in relation to ground water, because in the Water Framework Directive it says:

The presumption in relation to groundwater should broadly be that it should not be polluted at all. It is essentially a precautionary approach. 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 that the protection of groundwater from all contamination according to the principle of minimum anthropogenic impact.”

To conclude that the Precautionary Principle and water issues should firmly be part of the local planning authorities’ considerations when making their decisions on planning.

Thank you