Hydraulic fracturing - the third way

Hydraulic fracturing - the third way

Published:

Author: Angus Evers

Applies to: England and Wales

The Planning Court has rejected a legal challenge to the grant of planning permission for hydraulic fracturing in North Yorkshire.

Proposals for onshore oil and gas operations can attract strong local opposition, even if they are supported at a national level. In our October 2016 briefing 'Fracking up the Pressure' we reported on the Secretary of State's grant of planning permission on appeal to Cuadrilla for drilling exploration wells in Lancashire.

More recently, the Planning Court has dismissed an application for judicial review of a decision by North Yorkshire County Council to grant planning permission to Third Energy to carry out hydraulic fracturing at a site in Kirby Misperton. The ruling highlights some of the difficulties that objectors face in challenging planning permissions for onshore oil and gas operations.

Third Energy has operated a number of gas wells in the Kirby Misperton area since the mid-1980s. The wells are connected via a pipeline network to a gas-fired power station at Knapton, which opened in 1995. In 2013 Third Energy obtained planning permission for, and drilled, a further potential production well. In July 2015 they applied to North Yorkshire County Council (as the relevant minerals planning authority) for planning permission to hydraulically fracture that well and produce gas from it.

After considering Third Energy's application at a two-day Planning Committee meeting, the council granted planning permission in May 2016. Friends of the Earth and a local pressure group, Frack Free Ryedale, applied for judicial review of the decision to grant planning permission and, following a hearing in November 2016, the Planning Court rejected the application on 20 December 2016.

The claimants challenged the grant of planning permission on two grounds - first, that the council had failed to take into account an assessment of the climate change impacts arising from the burning of the gas produced from the well in the Knapton power station and, second, that the council had misdirected itself in law that it could not require Third Energy to provide a financial bond in relation to any long term pollution impacts.

Third Energy accepted the proposed project required environmental impact assessment, so before submitting their planning application, they had applied to the council for a scoping opinion. The claimants claimed that the scoping opinion issued by the council required the Environmental Statement for the project to include an assessment of the environmental impacts of burning gas from the well at the Knapton power station. The court rejected this claim.

The court noted in particular that the Environment Agency did not advise that the Environmental Statement ought to assess the impact of the emissions from the Knapton Power Station. The power station was off-site, some distance away, and operated under its own planning permission and environmental permits (including a greenhouse gas emissions permit). It also concluded that the Planning Committee's members had been properly advised by officers on relevant climate change issues.

In relation to the second issue, the conditions attached to the planning permission required Third Energy to restore the site following the end of gas production from the well in accordance with an approved restoration scheme and to manage it for a further 5 years in accordance with an approved aftercare programme. However, the claimants argued that Third Energy should also have been required to put in place a financial bond in case they were no longer in a position to cover the cost of any remediation required after the site had been abandoned.

After considering the sections of the Planning Practice Guidance (PPG) that deal with minerals development, the court concluded that the council's actions were in line with the PPG and that the council had acted lawfully in imposing the restoration and aftercare conditions and not seeking a financial bond.

Challenging the adequacy of an Environmental Statement in judicial review proceedings is always difficult and this case was no different. The court commented that the claimant's real objection was that energy needs should be met by other, less environmentally damaging, means than gas production and gas-fuelled electricity generation. It also noted that there were multiple gas wells in the council's area and that the Planning Committee's members had specialist knowledge. However, this raises the question of whether there would be a lower threshold for challenging decisions of mineral planning authorities which currently have no oil or gas wells in their area (and therefore arguably lack the same level of specialist knowledge).

This challenge will not be the last challenge to a planning permission for onshore oil and gas operations involving hydraulic fracturing, even though the claimants have said that they will not appeal. The Secretary of State's decision to grant permission to Cuadrilla for exploratory drilling in Lancashire is the subject of an application for a statutory review under section 288 of the Town and Country Planning Act 1990.

Disclaimer

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.