Category: Fracking

Fracking

Much has happened since my last blog post two weeks ago. Eclipsing all else has been the death on 8 September 2022 of Her Majesty Queen Elizabeth II – surely one of our greatest Britons. It is right that we mourn as a country as if a family. If anyone deserves that, she does. 

What is appropriate in this period of mourning? Hashi Mohamed and I decided to postpone our clubhouse chat about his new book A home of one’s own that was due to take place this Monday. It will now happen at 6 pm on Wednesday 5 October 2022 and we hope that you can join us. It felt wrong to be promoting the event actively this weekend and having what I hope will turn out to be a lively, no holds barred, discussion on what is wrong with our approach to housing. 

However, it feels equally wrong to pretend that everything else of concern in the world is on hold. There was literally no other news on the BBC last night.

And yet, these are momentous times. Liz Truss became prime minister on 6 September 2022 and on the morning of 8 September 2022, opening a debate on energy policy, she announced an energy price guarantee for individuals and businesses as wider energy policy changes (see Government announces Energy Price Guarantee for families and businesses while urgently taking action to reform broken energy market (press statement, 8 September 2022)). The energy price guarantee (a matter that is literally of life or death to many people, and a matter of survival or not for many businesses) needs to be fleshed out and of course one of the controversial aspects of the measure is the decision not to impose any further windfall tax on energy suppliers. Another controversial aspect is the unsurprising announcement by Truss that the Government would resume its support for fracking:

“We will end the moratorium on extracting our huge reserves of shale, which could get gas flowing in as soon as six months, where there is local support.”

Fracking proposals have effectively been on hold since November 2019, following this announcement by Andrea Leadsom and Kwasi Kwarteng: Government ends support for fracking (press statement, 2 November 2019)

“On the basis of the current scientific evidence, government is confirming today that it will take a presumption against issuing any further Hydraulic Fracturing Consents. This position will be maintained unless compelling new evidence is provided. While future applications for Hydraulic Fracturing Consent will be considered on their own merits by the Secretary of State, in accordance with the law, the shale gas industry should take the government’s position into account when considering new developments.

The OGA has advised the government that until further studies can provide clarity, they will not be able to say with confidence that further hydraulic fracturing would meet the government’s policy aims of ensuring it is safe, sustainable and of minimal disturbance to those living and working nearby.

The Infrastructure Act 2015 included the requirement for operators to obtain Hydraulic Fracturing Consent which ensures that all the necessary environmental and health and safety permits have been obtained before activities can commence. The Consent process also includes the requirement for an independent financial analysis of the operator to be carried out to ensure they can meet their licence obligations, including decommissioning.”

This was followed through into the Conservative manifesto for the December 2019 general election: 

“We placed a moratorium on fracking in England with immediate effect. Having listened to local communities, we have ruled out changes to the planning system. We will not support fracking unless the science shows categorically that it can be done safely.”

With a new Prime Minister, and a new Business Secretary, a new approach. Remember this for instance? Rees-Mogg downplays fracking risk and eyes ‘every last drop’ of North Sea oil (Evening Standard, 4 April 2022)

By way of contrast, as quoted by Sir Keir Starmer in his response to Truss’ speech, this was Kwarteng from March 2022 when he was Business Secretary:

“Even if we lifted the fracking moratorium tomorrow, it would take up to a decade to extract sufficient volumes – and it would come at a high cost for communities and our precious countryside.

Second, no amount of shale gas from hundreds of wells dotted across rural England would be enough to lower the European price any time soon.

“And with the best will in the world, private companies are not going to sell the gas they produce to UK consumers below the market price.”

Surely there are at least five questions at large:

Is there now adequate scientific evidence that fracking is safe?

We are waiting for the publication of a review by the British Geological Survey of the science of fracking, commissioned in April by BEIS, which has apparently had it since early July. Its publication is apparently imminent.

Have we any headroom within the “net zero by 2050” target to allow us to continue relying on extracting and burning hydrocarbons and what example does this set?

A bigger question but surely this is a big step away from where we should be heading. 

Is it feasible in any event to extract meaningful levels of shale gas which would have any meaningful effect either on energy security or energy prices?

Maybe circumstances have changed so radically since Kwarteng’s March 2022 comments such that current gas prices suddenly make fracking a potentially economic proposition? We don’t have the data but what a u-turn that would be from that March statement. In any event is there the evidence that as a country we do even have large amounts of shale gas to extract? The quantities would surely need to be enormous to have any economic impact. 

Given the technical and planning processes involved, and widespread public opposition, how will projects secure local support such that gas can be flowing within six months?

It’s interesting to compare with the on-shore wind policy position – still restrictive, the killer restriction being, by way of footnote 54 of the NPPF, that “a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”

Not at all easy – and fracking is way less popular than on-shore wind. Indeed, there was a fascinating Survation survey last week Polling in every constituency in Britain shows strong support for building wind farms to drive down consumer bills. 34% supported gas from onshore fracking while 45% opposed.

Who knows, perhaps we will see a return to the idea of a “shale wealth fund” for the benefit of local communities that I have just remembered that I was writing about in my 8 August 2016 blog post Back Yard Back Handers?

So is this all largely about anti-woke political positioning – and, as with the decision not to impose any further windfall tax on them, about signalling to energy companies that the UK is still open for (fossil fuel) business? 

In the words of our fictional Prime Minister Francis Urquhart: “You might very well think that; I couldn’t possibly comment.”

Simon Ricketts, 10 September 2022

Personal views, et cetera

NB For up to the minute policy commentary on fracking issues I do recommend the Drill or Drop website. 

When The Wind Blows

Relax – this blog post is about on shore wind turbines rather than nuclear fallout.

But there is somewhat of a “dig for victory” feel to our current conversations about energy. If we all just turn down our thermostats by one degree and so on.

Against the urgent need for greater energy security, against the escalating costs of energy and fuel (which make “levelling up” a side show) and of course against the largest and most relentless horseman of the apocalypse, climate change – there is one central question: How can we reduce our energy requirements and maximise the potential of our “home grown” sources of energy?

Following this 8 March Government press statement UK to phase out Russian oil imports (phasing out to be by the end of this year), we await a statement from the prime minister next week on the future of UK energy supply. He was quoted last week as follows:

“We need to intensify our self reliance as a transition with more hydrocarbons, but what we also need to do is go for more nuclear and much more use of renewable energy,” he said. “I’m going to be setting out an energy strategy and energy supply strategy for the country in the days ahead.”

This is not going to be uncontroversial, both by reference to “more hydrocarbons” (see eg Johnson hints UK oil and gas output must rise to cut dependence on Russia (The Guardian, 7 March 2022)) but also unfortunately in relation to renewables, the further encouragement of which should surely be a no-brainer.

We had a wide-ranging clubhouse discussion back on 8 February 2022, Renewable energy and using less energy: are you plugged in? which is worth listening back to (it includes discussion of energy reduction and of what is happening in relation to off shore wind energy which this blog post will not), and there is also my 23 October 2021 blog post Net Zero Strategy: We Can Have Cake & Eat It, but all that seems a long time ago set against recent events.

Warning: this blog post only considers England’s, particularly troubled, policy position, rather than the rest of the United Kingdom.

The July 2021 update to the NPPF did not contain any specific changes in relation to planning for climate change. Paragraph 152 (previously paragraph 148) still reads:

“The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure.”

When the update was published the Government’s response to consultation stated that 20% of respondents to that draft section of the framework “recognised the importance of climate change and indicated a need for stronger terminology to reflect this, such as specific references to the net zero target and emphasis on renewable energy” and stated that the Government is “committed to meeting its climate change objectives and recognises the concerns expressed across groups that this chapter should explicitly reference the Net Zero emissions target. It is our intention to do a fuller review of the Framework to ensure it contributes to climate change mitigation/adaptation as fully as possible, as set out in the [planning white paper].”

So we expect changes to the NPPF to strengthen planning policies on climate change. Can we expect any change of policy in relation to on-shore wind in particular?

If you recall, following its 2015 election manifesto pledge, the Government significantly toughened its stance in relation to on shore wind. Greg Clark issued this written ministerial statement on 18 June 2015:

“I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto.

Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance.

When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

· the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and

· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.”

New subsidies for on shore wind were also ended.

The stance flowed through to the NPPF and the relevant paragraph remains – supportive of renewable energy in principle but with a killer footnote in relation to on shore wind:

“158. When determining planning applications for renewable and low carbon development, local planning authorities should:

(a) not require applicants to demonstrate the overall need for renewable or low carbon energy, and recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and

(b) approve the application if its impacts are (or can be made) acceptable 54 . Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.”

Footnote 54:

“(54) Except for applications for the repowering of existing wind turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”

BEIS’s December 2021 document Community Engagement and Benefits from Onshore Wind Developments – Good Practice Guidance for England is, I suspect, largely wishful thinking without a remotely encouraging policy position. Is anyone aware of many (any?) local or neighbourhood plans which actually do identify suitable areas for wind energy development?

It seems that the wind could soon be changing if these media pieces are to be believed:

Relaxing rules on wind farms could ease gas crisis (The Times, 9 March 2022)

BEIS to tackle onshore wind planning restrictions in England (renews.biz, 10 March 2022)

The Government has of course been consulting on its suite of energy national policy statements, which set the policy basis for the determination of development consent order applications for nationally significant infrastructure projects. The draft national policy statement for Renewable Energy Infrastructure (EN‐3) (September 2021) is not currently relevant to on shore wind, as on shore wind projects were entirely removed from the NSIP system. However, could we see a volte face on that restriction too?

It was interesting last week to read the detailed 9 March 2022 House of Commons briefing paper research paper on large solar farms and the Hansard transcript of the Westminster Hall debate on the subject. As with on shore wind, there are of course conflicting priorities to be weighed up – with on shore wind it is most often issues as to effect on protected landscapes and heritage assets and with solar farms most often the use of productive farm land (after all, food security is possibly as important as energy security). I wonder whether the position in relation to solar farms would be clearer if the NPPF reflected the language of the draft renewable energy infrastructure NPS (which of course only applies to solar farms of 50 MW capacity or above):

“Whilst the development of ground mounted solar arrays is not prohibited on sites of agricultural land classified 1, 2 and 3a, or designated for their natural beauty, or recognised for ecological or archaeological importance, the impacts of such are expected to be considered […]. It is recognised that at this scale, it is likely that applicants’ developments may use some agricultural land, however applicants should explain their choice of site, noting the preference for development to be on brownfield and non-agricultural land.”

But back to the big picture – what direction are the prime minister’s announcements likely to take? This is such a precarious moment for the country’s approach to the climate crisis, with siren calls from the likes of Farage for a “net-zero referendum” and from some, equally opportunistically, even for a reversal of the Government’s ban on fracking.

Dangerous times.

Simon Ricketts, 12 March 2022

Personal views, et cetera

PS no Clubhouse this week, due to MIPIM for some. We return on the 22 March – subject yet to be announced!

NPPF & PPG In Court

Hanging over me all week was a deadline for preparing a legal update about the NPPF. Then, thank you judges, just like London buses but with more barristers on board, along came three interesting cases.

Is the NPPF subject to the requirements of SEA?

The question as to whether the latest version of the NPPF required strategic environmental assessment was the question before Dove J in Friends of the Earth v Secretary of State (Dove J, 6 March 2019).

 

You will recall that requirements of the SEA Directive apply to plans and programmes which are “required by legislative, regulatory or administrative provisions” and which “set the framework for future development consent of projects”.

 

The Government argued that neither applied in the case of the NPPF. It was always going to be a stretch to argue that the, er,  Framework does not set the framework for the future development consent of projects and the judge wasn’t going to accept that. But he did conclude that due to the Framework’s curious, non-statutory, legal basis it could not be said to be required by legislative, regulatory or administrative provisions and therefore SEA was not required: “there is in reality nothing by way of any formal provisions which might be said to govern or regulate the production of the Framework“.

Incidentally, I had always assumed that fear of being caught by SEA requirements was one reason why the NPPF has remained so determinedly non-spatial but, on Dove J’s reasoning, even an NPPF with spatial policies would not require SEA.

Was consultation on the draft NPPF legally inadequate in relation to fracking?

The hearing in relation to Stephenson v Secretary of State (Dove J, 6 March 2019), a claim brought on behalf the Talk Fracking campaign group, immediately followed the Friends of the Earth hearing and one of its grounds (ground 3) was covered by the previous case. The other grounds focused on the new NPPF’s pro-fracking paragraph 209(a):

“Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction.”

Ground 1 contended that “the Defendant unlawfully failed to take into account material considerations, namely scientific and technical evidence, which had been produced following the adoption of a Written Ministerial Statement by the Secretary of State for Business and Energy and Industrial Strategy and the Defendant on 16th September 2015 (“the 2015 WMS”)”

Ground 2 contended that “the Defendant failed, in publishing the policy in paragraph 209(a) of the Framework, to give effect to the Government’s long-established policy in relation to the obligation to reduce green-house gas emissions under the Climate Change Act 2008“.

Ground 4 contended that “the Defendant failed to carry out a lawful consultation exercise in relation to the revisions to the Framework which were published on 24th July 2018.”

Dove J started with ground 4, because “at the heart of the dispute” was the questions as to “what the Defendant was doing when incorporating paragraph 209(a) into the Framework or, more particularly in relation to Ground 4, what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing“. The issues “cannot be disposed of by simply considering the Defendant’s private intentions“. In the documentation there was no suggestion that the merits or substance of the policy represented by the 2015 WMS were outside the scope of the consultation.

“By contrast with what the reasonable reader would have discerned from the publicly available material, the Defendant had a closed mind as to the content of the policy and was not undertaking the consultation at a formative stage. The Defendant had no intention of changing his mind about the substance of the revised policy. Further, the Defendant did not conscientiously consider the fruits of the consultation exercise in circumstances where he had no interest in examining observations or evidence pertaining to the merits of the policy. This had the effect of excluding from the material presented to the Minister any detail of the observations or evidence which bore upon the merits of the policy. Given my conclusion as to what the reasonable reader would have concluded from the publicly available documentation the consultation exercise which was undertaken was one which involved breaches of common law requirements in respect of consultation and which was therefore unfair and unlawful.”

Ground 1 accordingly also succeeded: it was unlawful to fail to take the Talk Fracking material into account in decision making as to the final form of the NPPF, given that it was clearly relevant to the questions posed. “The fact that the Defendant believed that he was taking a far more narrow and restricted decision from that which he had advertised to the public does not provide a basis for avoiding that conclusion.”

Ground 2 failed, but on the basis of reasoning which may be helpful to the anti-fracking community, in that the judge accepted the Secretary of State’s submission that “in individual decisions on plans or applications the in principle support for unconventional hydrocarbon extraction, provided by paragraph 209(a) of the Framework, will have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. These are conflicting issues which the decision-maker will have to resolve.”

The judge has not yet determined the appropriate relief (ie what should be done) to give effect to his judgment. But surely we are now likely to see further consultation as to paragraph 209(a) and potentially another tweaked NPPF in due course. NPPFs are also now coming along like buses.

What is the legal status of Planning Practice Guidance?

This question was relevant in Solo Retail Limited v Torridge District Council (Lieven J, 4 March 2019) as it went to complaints about the approach taken by a local planning authority to retail impact assessment, in a challenge by one value retailer to a planning permission granted to a competitor. The complaint was that the guidance in the PPG has not properly been followed.

Of course if there is doubt as to the legislative, regulatory or administrative basis for the National Planning Policy Framework, that doubt is accentuated in the case of the Government’s subsidiary Planning Practice Guidance.

The judge found that the NPPF and the local development plan were not prescriptive as to the form of retail impact assessment required to be carried out. The claimant therefore had to fall back on the detailed steps for assessment set out in the PPG.

However:

“In my view the NPPG has to be treated with considerable caution when the Court is asked to find that there has been a misinterpretation of planning policy set out therein, under para 18 of Tesco v Dundee. As is well known the NPPG is not consulted upon, unlike the NPPF and Development Plan policies. It is subject to no external scrutiny, again unlike the NPPF, let alone a Development Plan. It can, and sometimes does, change without any forewarning. The NPPG is not drafted for or by lawyers, and there is no public system for checking for inconsistencies or tensions between paragraphs. It is intended, as its name suggests, to be guidance not policy and it must therefore be considered by the Courts in that light. It will thus, in my view, rarely be amenable to the type of legal analysis by the Courts which the Supreme Court in Tesco v Dundee applied to the Development Policy there in issue.

These points are illustrated the paragraphs of the NPPG that are most relevant in this case. Paragraph 015 says that “the impact test should be undertaken in a proportionate and locally appropriate way…” However, paragraph 017 says “The following steps should be taken in applying the impact test…”. Taken at face value these words would seem to suggest that the following elements are mandatory where there is a policy requirement for any form of impact test. However, in my view that cannot be the case. There is a judgement for the LPA as to what level of scrutiny of possible impact is appropriate in the particular circumstances of the proposal, taking into account the need to be proportionate. Paragraph 017 therefore cannot and should not be interpreted and applied in an overly legalistic way as if it was setting out mandatory requirements.”

A reminder not to interpret the PPG legalistically. There may be internal inconsistencies within it. Guidance means guidance.

Simon Ricketts, 9 March 2019

Personal views, et cetera

Back Yard Back Handers

The idea, set out in the prime minister’s announcement  in relation to the Shale Wealth Fund, of the planning system encompassing direct payouts to households affected by shale oil and gas proposals, is an eye-opener on various levels – particularly given the suggestions that this will not stop at shale.

I set out below some reasons why I believe it is a wrong move and/or will not work. 
However, the proposals don’t come entirely out of the blue. 
There has been a community engagement charter since June 2013 in relation to oil and gas from unconventional reservoirs  It includes commitments from the industry to:
“Provide benefits to local communities at the exploration/appraisal stage of £100,000 per well site where hydraulic fracturing takes place;

Provide a share of proceeds at production stage of 1% of revenues, allocated approximately 2/3rd to the local community and 1/3rd at the county level”
Community benefit packages like this are not new. There is also a non-statutory process in relation to on-shore wind. Community Benefits From On Shore Wind Developments  published by DECC (as it then was) in October 2014, describes a voluntary protocol agreed by the on shore wind industry. It commits developers of onshore wind projects above 5 MW in England to provide a community benefit package to the value of at least £5000 per MW of installed capacity per year, index-linked for the operational lifetime of the project. There are equivalent schemes in Wales and Scotland. The guidance stresses that payments should not be taken into account by decision-makers in determining applications. There is much focus on identifying appropriate community bodies and working through how benefits can most be effectively used by the community, with no suggestion of the monies being able to be shared out for personal gain. 
With fracking, the potential move to individual payouts was flagged in January 2014. As part of announcements that local authorities would in 100% of business rates from fracking,  it was announced that the industry would further consult about its community benefits packages, “with options including direct cash payments to people living near the site, plus the setting up of local funds directly managed by local communities”. 
For an industry paralysed by opposition to its proposals for exploratory wells, let alone extraction, this is presumably a fairly desperate attempt to turn the tide of local opinion. But the implications of such a scheme would go way beyond energy policy. Again, extending such ideas to housing is not new. Then deputy prime minister Nick Clegg was reported in August 2013 as promoting the idea of payments for those affected by garden city proposals.
These are seven obvious concerns:
1. It won’t reduce the opposition
Objections are not necessarily limited to the immediate environs of the project. People have strongly held concerns about (in the case of fracking) the potential effects of shale oil and gas extraction on the environment and on climate change more generally. Those non-local objectors will not be “bought off” by any direct payment. 
Nor will local objectors, whose concerns are, it is to be assumed, strongly held and not necessarily swayed by cash. Indeed a December 2014 research report on public engagement with shale gas and oil commissioned by the previous Government would appear to support that view.  Chapter 5 addresses mixed reactions to community benefits packages: 
“The financial aspect of the package was met with discomfort for many, because it was seen to monetise the risk taken on by the community, and was thus seen as a bribe by some. The fact that money was offered was also seen to indicate the activity was extremely high risk and dangerous, as participants were unaware of money being exchanged in other situations. “

2. Contamination of the planning process

Regulation 122(2) of the CIL Regulations 2010 provides that
“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a)necessary to make the development acceptable in planning terms;

(b)directly related to the development; and

(c)fairly and reasonably related in scale and kind to the development.”

It is of course a fundamental principle of the UK planning system that planning permissions cannot be bought or sold. However, let’s face it, our system is already influenced by financial considerations. For example:

– the Localism Act 2011 amended section 70 of the Town and Country Planning Act 1990 so as to require decision-makers to take into account in their decisions “any local finance considerations, so far as material to the application”

– local authorities are rewarded by Government for allowing homes to be built, by way of the new homes bonus and the business rates system increasingly encourages authorities that go for growth. 
– a proportion of CIL receipts is payable to parish councils, with little restriction in practice on what the monies can be spent on.
There is nothing necessarily wrong in my view with these interventions. Monies are directed to democratic bodies acting in the public interest. But we should be planning for the long term, for future generations rather than those who happen currently to live beside a major proposal. 
3. This is not about compensation for impacts
The VOA reported in August 2014   that there is no evidence that shale oil and gas exploration will affect house prices. I assume their view has not changed. 
The compulsory purchase compensation system provides protection for those whose land interests are taken or where, even if no land is taken, there is reduction in land value due to the physical effects arising from the operation of development projects. The common law of nuisance provides additional protections. 
4. It will be complicated
Who draws the boundary lines that determine who qualifies? What distinctions are there between home owners and tenants? Will there be minimum residency requirements? What about second home owners? What about clawback if people move out of the area within a short period of time, having accepted the payment? How will it be treated for tax purposes? All in all a lot of detail to be resolved and even the. There will inevitably be those who feel that they have been unfairly excluded. 
5. Slippery slope
Why not every form of development? This legitimises dialogue on planning being about how much should be paid to individuals affected, not what is in the public interest.
6. Dissipation of funds
The on-shore wind protocol contains good examples of how community benefits can deliver worthwhile projects, in the public interest. This opportunity is wholly lost with individual payouts.  

7. Whatever happened to localism?

The most depressing aspect of the announcement is that it appears to be a recognition or hunch that, for all the promotion of, initially, the Big Society, from 2010 and then neighbourhood planning, with the structures created by the Localism Act 2011, what drives behaviour is not community but me, myself, I. In order to persuade us each to allow development to proceed, apparently monies have to change hands, directed not to our parish council or other community group but directly into our bank accounts. 
Tell me if I have this wrong…

Simon Ricketts 8.8.16
Personal views, et cetera
 

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