UK: Significant Other?

Last Updated: 11 March 2013
Article by Mark Challis

"the planning system must be able to arbitrate between genuine local concerns and the national need in a considered, fair and timely way"

This article first appeared in Utility Week's print edition on 22nd February 2013.

The government looks set to extend the nationally significant infrastructure planning regime to more projects.

The Overarching National Policy Statement for Energy, as designated in July 2011, makes barely a mention of shale gas. Yet since its designation, there has been a growing awareness of the possibility of shale gas extraction making a significant contribution to the UK's energy needs.

The government is now considering whether onshore gas extraction projects, including shale, could be treated as "nationally significant infrastructure projects". This would mean that developers could seek to secure the authorisations needed by going through the Planning Act 2008 process.

The Planning Act was introduced with the aim of making the authorisation process for major infrastructure projects more certain and predictable, in the hope that more projects would be delivered.

A number of environmental issues arise. Seismic activity, the potential to contaminate water supplies, use of large quantities of water and the release of greenhouse gases are just some of the issues frequently raised to sit alongside the more usual planning objections of visual effects, traffic issues and so on.
However, the government plainly wants to give the potential benefits of shale gas extraction a chance. Among other measures, a traffic light regime is proposed that will require real-time seismic monitoring with a requirement for operations to stop if readings are unusual and for a "fracking plan" to be approved in relation to any proposals.

It can be expected that many shale gas extraction proposals will meet with fierce opposition, and that some can expect a far from easy ride through the planning system. However, the planning system must be able to arbitrate between genuine local concerns and the national need in a considered, fair and timely way. With this in mind, the Department for Communities and Local Government (DCLG) has just finished consulting on the possibility of a range of projects, that could include shale gas projects, being authorised either via the conventional planning system, via local planning authorities or, alternatively, under the procedure for the authorisation of nationally significant infrastructure projects by way of development consent orders granted by the secretary of state.

DCLG's November 2012 consultation paper Nationally Significant Infrastructure Projects: Extending the Regime to Business and Commercial Projects invited views on the possibility of allowing for projects of various different categories (in England only) being authorised by way of the Planning Act 2008 procedure. The procedure would be available at the developer's election, provided that the secretary of state was satisfied that the project was one of national significance.

In making that decision, the criteria likely to be applied by the secretary of state are:

  • the physical scale of the proposed development;
  • the possible impacts of the proposed development, particularly if it has significant effects beyond the immediate locality;
  • the location of the proposed development and whether that gives rise to substantial cross-boundary or national controversy;
  • the potential economic impact where a proposed development may have significant impact on economic growth;
  • for proposed minerals extraction, the rarity and importance of the mineral;
  • whether issues of national security or which involve foreign governments are involved.

Various different types of business and commercial development are proposed to be subject to these new arrangements, including onshore gas extraction proposals involving more than 500,000m3 of gas per day.

Shale gas extraction projects, which typically involve a number of drill shafts feeding back into a single well head, are capable of exceeding these limits, thereby allowing a developer to elect for the project to be treated as a nationally significant infrastructure project and authorised accordingly.

For some developers this will be an attractive proposition. The process of obtaining a development consent order under the Planning Act 2008 is an exacting one, requiring the preparation of a detailed set of application documents. And the process is very much front loaded, so that making amendments post application is not easy. There is also a statutory need to carry out and record a consultation process to a high standard if the proposal is to be even considered by the secretary of state.

However, the advantage for the developer that chooses this route is that a development consent order can bring together the various powers needed, including planning permission, compulsory purchase powers and powers to deal with highways. Further, although the local authority remains an important part of the process and a very important consultee, the decision is made not by the local authority but by the secretary of state. In circumstances where the local planning authority is unlikely to be supportive and likely to be faced with numerous and vociferous objections, the use of the Planning Act 2008 route has obvious attractions.

New legislation is required to make this happen and is at present in draft form in clause 24 of the Government and Infrastructure Bill, which is expected to become law later this year. If it does, then shale gas developers will need to quickly get to grips with the opportunities that the Planning Act process provides.

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.

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