New measures to compel local councils to speed up frackers’ planning applications have a clear intention, writes The Ecologist editor, Oliver Tickell – to make it ever harder for planners to refuse permission.

The precise intention of the measures is surely to make it ever harder for Councils to refuse planning applications for fracking even where they are highly unpopular and there are strong reasons in planning law for so doing.

Energy secretary Amber Rudd announced on 12 August that planning applications for fracking must be “fast-tracked” by local authorities or the government will step in.

Up and Running

According to the press release from DECC, the energy department, “Shale gas planning applications will be fast-tracked through a new, dedicated planning process, under measures announced today.”

Rudd said: “To ensure we get this industry up and running we can’t have a planning system that sees applications dragged out for months, or even years on end.”

She added that oversight by the Health and Safety Executive and the Environment Agency of shale developments “makes our commitment to safety and the environment crystal clear.”

The measures include “identifying councils that repeatedly fail to determine oil and gas applications within the 16 week statutory timeframe, with subsequent applications potentially decided by the Communities Secretary.”

In addition shale applications will be added “as a specific criterion for recovery of appeals”; planning ‘call-ins’ and appeals involving shale applications are to be “prioritised by the Planning Inspectorate”; and the government will take forward work on “revising permitted development rights for drilling boreholes for groundwater monitoring.”

Overlooking Information

Speaking on the BBC on 13 August, Rudd complained that it had taken Lancashire Council over a year to determine Cuadrilla’s application and that this was unacceptable due to the “great opportunity of exploring for shale.”

However Jennifer Mein, Labour MP and leader of Lancashire County Council, said that the application was repeatedly delayed at Cuadrilla’s request, comprised many hundreds of pages of complex, detailed technical documents, triggered tens of thousands of letters that needed to be considered by planning officers, and was the first of its kind and would therefore set precedents for other applications.

“Which part of the information that we had to consider would Amber Rudd be prepared to overlook?” she asked. Amber Rudd failed to answer the question, instead insisting that it was only a question of making sure that local authorities obey planning law.

Greenpeace UK‘s Head of Campaigns, Daisy Sands responded: “Local residents could end up with virtually no say over whether their homes and communities are fracked or not. This is a clear affront to local democracy.

“There is a double standard at play – the same government that is intent on driving through fracking at whatever cost has just given more powers to local councils to oppose wind farms, the cheapest source of clean energy.”

Friends of the Earth planning adviser Naomi Luhde-Thompson added: “Bulldozing fracking applications through the planning system, against the wishes of local people and councils, will simply fan the flames of mistrust and opposition. 
 
“Local authorities have been following the rules. These changes are being made because the Government doesn’t agree with the democratic decisions councils have been making.
 
“Rather than riding roughshod over local democracy to suit the interests of a dirty industry, ministers should champion real solutions to the energy challenges we face, such as boosting the UK‘s huge renewable power potential and cutting energy waste.”

Tilting the Playing Field

The real problem in all of this is that by imposing tight deadlines on the time for determining major planning applications to frack, it will make it far harder for councils to refuse permission.

This is because councils act as ‘quasi judicial’ authorities and are accountable for their decisions in law. And in the event of a refusal of planning permission, applicants are certain to appeal – as indeed Cuadrilla is doing in Lancashire.

That means that councils who refuse planning applications need to have a robust case for doing so that will withstand the most stringent legal tests that are certain to take place at planning appeals and in any actions for Judicial Review. In many cases these action would result in heavy costs and penalties levied against them.

In the case of Cuadrilla’s recent applications in Lancashire, councillors only voted against the application after reviewing three separate legal opinions by senior barristers.

The Council’s own legal opinion advised granting permission to one of the applications as any appeal against refusal was certain to succeed and heavy costs would be applied. However the two independent opinions took the opposite view, and this led to the rejection of both applications.

Local Challenges

Given the immense volume of highly technical information to be reviewed and tested by planning authorities, the task of constructing a watertight legal case to support refusal while operating under tight deadlines will present local authorities with a huge and in many cases impregnable challenge.

Furthermore many planning authorities with no experience of dealing with applications for oil and gas development will lack internal expertise to properly analyse and scrutinise them, and will therefore have to commission external expertise to do so – again adding time to the process.

Therefore many councils will find themselves compelled to accept planning applications to frack, even where refusal could be justified, in order to avoid the very real risk of successful appeals and costs awards to developers.

Councils will also know that if the government takes over planning applications, as the measures announced today provide for, then approval will be the almost certain outcome given its relentless pro-fracking policies.

And this is surely the precise intention of the measures that the government has announced today: to make it ever harder for councils to refuse planning applications for fracking even where they are highly unpopular and there are strong reasons in planning law for so doing.

This article has been cross-posted from The Ecologist. Oliver Tickell edits The Ecologist.

Photo: 70023venus2009 via Flickr (CC BY–ND)