UK: Are Peers Fracked Off For The Wrong Reasons?

Last Updated: 4 March 2013
Article by Angus Walker

Today's entry reports on growing concern about the Growth and Infrastructure Bill's business and commercial project provision.

On Wednesday, the House of Lords will start the 'report stage' of the Growth and Infrastructure Bill, the first of three such days. It is another opportunity for amendments to the Bill to be debate.  The current list of proposed amendments can be found here, and the list contains a number of  government amendments, which will actually be made.

As has been said to me the controversial parts of the Bill are the 'bread in the sandwich', i.e. the first and last substantive clauses, rather than the middle.  The first one is the 'special measures' clause that allows the government to take planning decisions away from local authorities that haven't performed well enough, and the last one allows employees to exchange employment rights for share ownership.  These will occupy most of the debate on the first and third days.

There is growing opposition to one of the infrastructure clauses, however, which will be debated on the second day, 12 March: the clause that allows business and commercial projects to use the Planning Act regime.  But is the opposition misplaced?

In an article in the Daily Telegraph on Saturday, there are reports that peers and a number of environmental groups are opposing the clause on the basis that it would allow the government to 'override local authorities to grant planning permission' for 'fracking'.  Fracking also permeated through the committee stage debate earlier this month, like methane in a rock stratum.

Fracking is short for hydraulic fracturing, which is the process whereby pressurised fluid is used to fracture underground rock and release hydrocarbons. One of the main ones is shale gas, and 'fracking' and 'shale gas' are more or less describing the same issue in the UK.  Sand in the fluid props the rock open and is known as a proppant, there's a new word for you. In the UK, fracking is being tried near Blackpool in Lancashire and was stopped when it was thought to be causing small earthquakes but the promoter  has applied at another site nearby after the Royal Society gave fracking a green light.


In my view the opposition to the clause is misdirected, for several reasons.

First, and most significantly, the Planning Act already allows fracking to use its authorisation regime under its current provisions.  The Act currently contains the ability for an application to be made to the government to bring a particular project within the regime, as long as it is in the fields of energy, transport, water, waste water or waste.  Fracking is surely an energy project, so already has the benefit of this provision.

Secondly, the Bill does not mention fracking at all, it allows 'business and commercial' projects to use a similar provision to the one above.  Rather, it will be regulations made under the Bill that will set out which types of projects fall within the definition of business and commercial.  Having said that, it is admittedly more effective and gets more publicity to raise issues during consideration of a bill than regulations.

The government has consulted on the contents of the regulations.  While it has included 'onshore oil and gas extraction' amongst the types of project, which suggests it doesn't think those are energy projects, it proposes a threshold of an extraction rate of 500,000 cubic metres of gas a day.  This is the same as the threshold for deciding whether environmental impact assessment (EIA) is required, and fracking operations are unlikely to exceed it (they may however trigger EIA if the surface installation is likely to have significant effects on the environment).

Thus as things stand, the regulations will make the threshold too high for fracking to be included - were it to come under the business and commercial project heading.

Thirdly, even if it did come within the heading according to the regulations, its promoters would need to demonstrate that it was of national significance to be allowed to use the Planning Act regime, a hurdle that projects currently above the thresholds in the Act do not have to overcome (the rationale being that the thresholds are set at the 'nationally significant' level already).

Fourthly, if a fracking project did fall to be considered under the Planning Act regime, it would no more 'override local authorities to grant planning permission' than a conventional planning application.  If the local authority refused a planning application, the promoter could appeal to the same government that would take the decision on a Planning Act application.

This happened last year in the case of a potential fracking site at Llandow in Wales.  That application was made on 17 August 2011 and the appeal was decided on 6 July 2012 - shorter than a Planning Act application would take and with no 'Local Impact Report' from the local authority having to be taken into account in the decision.  I note in passing the local authority's planning website's echoes of the Hitchhiker's Guide to the Galaxy: vogonline.

If you don't like fracking, you should not be directing your fire at ('so-called') clause 24 of the Growth and Infrastructure Bill.  You should be calling for consultation when applications are made to bring a project within the Planning Act regime so that it doesn't happen without anyone knowing about it (and the National Infrastructure Planning Association has called for at least local authorities to be consulted).

If an application does come under the Planning Act regime, you should use that system to your advantage to demonstrate that the project's adverse impacts outweigh its benefits, which is the test the decision-maker has to take.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Angus Walker
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions