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Shale gas e-briefing: New UK planning guidance published

    • Real estate planning - Planning briefings
    • Energy and infrastructure - Shale and unconventional

    30-07-2013

    On 19 July 2013, the Department for Communities and Local Government published planning guidance for industry, minerals planning authorities and local communities on how shale gas (and other onshore oil and gas) developments should proceed through England’s planning system.

    The guidance makes it clear that responsibility for determining planning applications for onshore oil and gas activities, including for the exploration of shale gas, remains with local authorities. Decisions will therefore continue to be taken in accordance with local plans and the National Planning Policy Framework. The guidance provides clarity on the role of the planning system and interaction with the separate environmental and health and safety regimes.

    Planning permission is required for each separate phase of the extraction of shale gas:

    • exploration;
    • testing (appraisal); and
    • production.

    The merits of each phase of the process will be considered separately. The most interesting aspects of the guidance are:

    1. Relationship between planning and other regulatory regimes

    Significantly, the guidance clarifies that the planning authority should focus on whether the development is an acceptable use of land. They should assume that non-planning regimes will operate effectively in relation to issues such as control processes, health and safety issues and emissions, etc.

    Issues which planning authorities can assume will be satisfactorily addressed by other regimes include:

    • Mitigation of seismic risks;
    • Well design and construction;
    • Operation of surface equipment on the well pad;
    • Mining Waste;
    • Chemical content of the hydraulic fracturing fluid;
    • Flaring or venting; and
    • Final off-site disposal of water.

    2. Environmental Impact Assessment (“EIA”)

    The guidance also clarifies when an EIA is likely to be required. In most cases an EIA will only be required if the project is likely to have significant environmental effects under Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 which implements requirements of the European EIA Directive. All applications will be assessed on a case by case basis but the guidance indicates that it is unlikely that an EIA will be required for exploratory drilling operations which do not involve hydraulic fracturing.

    The European Union is currently considering proposals to amend the EIA Directive. One of the proposed changes is to require an EIA for all “exploration, evaluation and extraction” of shale gas. If this proposal is adopted it will have a considerable impact on shale gas operators particularly as “exploration” may be interpreted as including all preliminary activities such as seismic and geological surveys to establish whether hydrocarbons are present. All Member States would have to implement the Directive into national legislation. This amendment could therefore severely affect the rate of shale gas development across Europe. The proposed changes have yet to be adopted by the European institutions and opportunity remains for industry and other interested parties to express their views.

    3. Determining the planning application

    Mineral planning authorities should not consider demand for, or consider alternatives to, oil and gas resources when determining planning applications but they should give great weight to the benefits of minerals extraction, including to the economy, when determining planning applications.

    4. Aftercare and restoration

    Responsibility for the restoration and aftercare of shale gas extraction sites lies with the operator and they are required to submit proposals for restoration and aftercare as part of the proposal.

    Planning authorities should use planning conditions and s106 Agreements to ensure proper restoration and aftercare of sites.

    Operators should meet any justified and reasonable concerns about financial liabilities relating to the restoration of the site through agreeing a planning obligation or voluntary agreement at the time a planning permission is given.

    A financial guarantee to cover restoration and aftercare costs will normally only be justified in exceptional cases.

    The guidance will be kept under review and should be read alongside other planning guidance and the National Planning Policy Framework.

    For more information contact

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