Media Briefing Note: Promises, Promises… Government Facilitates Faster Fracking Decisions, but is it Enough? Ask Hogan Lovells
13 August 2015
In a move to boost the shale gas industry, the Government has announced changes to the planning system to ensure that applications for the exploration and development of shale gas will be dealt with quickly.
Commenting on the changes, Louise Moore, partner in Hogan Lovells environment team, said:
"The prospect of prompt decisions on shale gas proposals will be widely welcomed. Delays in the planning system are the enemy of all development proposals and long-running appeals can be particularly damaging. This is a positive step that represents a clear endorsement for the future of the industry.
"However, the changes fall some distance short of creating what has been described by some commentators as a "fast track" regime for shale gas development. Government intends that most applications will continue to be dealt with in the normal way by LPAs, who will continue to find it difficult to approve projects against which there is hardened local opposition. Local political influence can be decisive on controversial projects, regardless of the position of Whitehall.
"The new measures contrast to an extent with calls from the Independent Task Force on Shale Gas for increased community engagement. Certainly, developers should be alive to the desirability of maintaining their social licence to operate and to increasing confidence levels in the sector.
"It is not inconceivable that, without evidence of more balanced and efficient treatment of future applications, further and more significant changes might lie ahead."
The announcements appear in a joint statement made by the Departments for Energy and Climate Change, and Communities and Local Government. They follow in the wake of Secretary of State Amber Rudd's ministerial statement on 10 August, in which she pledged continuing support for the shale gas industry, but singled out the planning system as an obstacle to the timely delivery of projects.
A summary of the measures announced is as follows.
- Planning applications for shale gas exploration and development will be subject to particular scrutiny by CLG Secretary of State Greg Clark. He will "actively consider" calling these in for his own determination, with priority given to any such called-in proposals.
- "Underperforming" LPAs – i.e. those that repeatedly fail to determine planning applications within statutory timeframes – will be "identified". Thereafter, when further applications are made to those authorities, the Secretary of State will consider whether he should determine those himself.
- As to planning appeals for shale gas proposals, these will be "treated as a priority for urgent resolution".
- Furthermore, the Secretary of State "may also want to give particular scrutiny" to such appeals. Accordingly he will revise the criteria used to decide which appeals to recover for his own determination, so that shale gas proposals are specifically included for consideration. This will apply for a period of two years after which it will be reviewed.
- Finally, amendments to permitted development rights will allow the drilling of boreholes for groundwater monitoring without planning permission, as proposed in the consultation issued in March. Meanwhile, views on proposals for further amendments are invited; these would extend permitted development rights to borehole drilling for seismic investigation and to locate and appraise shallow mine workings. The consultation runs until 24 September.
These announcements come in the aftermath of Lancashire County Council's decision, in June, to refuse permission for drilling at two sites between Preston and Blackpool. This decision represented a blow for the industry, and frustrated hopes for the early and widespread deployment of the technology. The new measures will impact Third Energy's recent application for permission in Yorkshire and Cuadrilla's appeal of its rejected applications.