On 6 October 2016, the Secretary of State for Communities and Local Government (SoS), issued decisions in relation to four separate appeals made by the natural resources exploration and production company, Cuadrilla.
The appeals were recovered by the SoS for his own determination under a Direction, issued by the Government in August 2015, relating to applications for '.exploring and developing shale gas.'
The appeals concerned two separate sites at Preston New Road and Roseacre Wood, near Preston, Lancashire, where permission was being sought for the construction and operation of the sites for the drilling of exploratory wells and various testing and monitoring procedures. The testing procedures included hydraulic fracturing.
The SoS allowed three of the four appeals. The remaining appeal (for the Roseacre Wood site) was not refused, but will be the subject of a reconvened Inquiry in due course, to clarify concerns raised over the highway impacts of HGV traffic.
What is interesting about these decisions, of course, is that despite considerable public and third party opposition, there has been little real doubt as to the eventual outcome. The analogy with the Heathrow Terminal 5 Inquiry and the rise of the telecommunications industry in the late 1990's is compelling; with the "national need" ultimately overcoming any other environmental, safety or amenity concerns as part of the "planning balance."
Indeed, the SoS stated in his decision that the national need for shale gas exploration is a factor to which he gives "great weight." That follows on from previous Government statements and David Cameron's own declaration in 2014 that his government is 'going all out for shale'.
It is perhaps because of this that the recent House of Commons Library Briefing Paper 'Shale Gas and Fracking', issued on 27 September 2016, records that a future Labour government would ban hydraulic fracturing.
This is based on Labour's concerns that extraction of shale gas "locks" the country into an energy infrastructure that is based on fossil fuels long after we need to move to cleaner forms of energy. Labour also concede that while there are "technical problems" with hydraulic fracturing which could lead to environmental risks, these can inevitably be 'overcome.'
The recent decisions add weight to Labour's argument in this respect, with some 50 planning conditions and a Section 106 Planning Obligation being put in place to mitigate or otherwise overcome environmental and other amenity concerns on one of the sites at Preston New Road.
Notwithstanding this, the planning framework is only one part of the jigsaw here. The UK has one of the toughest regulatory regimes in the world for onshore oil and gas exploration that seeks to minimise any potential environmental or safety risks. Cuadrilla's operations will also be subject to regulation by the Oil & Gas Authority and the Health & Safety Executive.
There is also no guarantee that the test drilling will yield commercially viable quantities of gas and, even if it does, further planning permissions, environmental permits and other consents will be required to authorise the commercial production of gas.
It should also be noted that the Environment Agency has already granted Cuadrilla environmental permits for its test drilling at both sites, which impose strict conditions on operations and which were not subject to any legal challenge.
Whether a legal challenge to the SoS's decision will be lodged is unknown at this stage, although it has been reported that objectors are trying to raise funds for such a challenge through crowdfunding. That will inevitability delay matters if it is, but even in the absence of that, it is likely to be several more years before we see any commercial gas production at the sites.
The decisions also pose some interesting questions about the future direction of the UK's climate change policy and the ratification of the December 2015 Paris Agreement. The government has previously stated that it believes that shale gas exploration is consistent with the UK's legally binding obligations to reduce carbon emissions, but has not yet ratified the Paris Agreement (while other major greenhouse gas emitters such as the US and China have done so). Although the SoS took the view that it was for the government to decide how to respond to the Paris Agreement through national policy, the decisions do cast doubt on the government's commitment to tackling climate change.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.