UK: Nothing Earth-Shattering In Fracking Guidance

Last Updated: 25 July 2013
Article by Angus Walker

Today's entry reports on the issuing of planning guidance on shale gas extraction and a consultation on tax incentives for it.  It should be a useful round-up of the latest developments in the regulation of this nascent but rapidly developing industry.

Recent developments

Before last Friday there had been two developments in the last month on fracking that are worth mentioning.

First, the Environment Agency issued a commitment at the end of June to simplify the environmental permitting regime for shale gas, with a single point of contact, draft technical guidance for consultation to be published by the end of this month and a reduction in the time to issue a permit from 13 weeks in September to 1-2 weeks by February 2014.  Now that is impressive.

At about the same time, industry body the UK Onshore Operators Group (UKOOG) issued a 'community engagement charter' last month, which promises £100,000 to local communities per well site where fracking takes place.  UKOOG should not be confused with the government's new Office of Unconventional Gas and Oil, which sadly is not abbreviated to 'off-u-go', but OUGO.

Friday 19 July developments

Last Friday, accompanied by headlines such as 'George Osborne unveils 'most generous tax breaks in world' for fracking', the government first announced what was in fact a consultation on a fiscal regime for shale gas.

The consultation document can be found here. It's the first time I've seen a 'consultation document' that is just a web page rather than a downloadable PDF - is this the shape of things to come?  As it is not divided into pages, I would suggest that for documents such as this the paragraphs are numbered so that the document can be referenced easily.  The consultation document omits to mention it, but the closing date is 13 September.

Later in the day, the Department of Communities and Local Government issued planning practice guidance for onshore oil and gas, which can be found here.   Here is a summary.

There are three phases to onshore hydrocarbon extraction: exploration, testing (sometimes called appraisal) and production.  Applications for each phase should be treated independently.  At the moment they are consented via planning applications to the mineral planning authority, which is the county council if there is one, or the unitary authority if not.

I have a bee in my bonnet that applicants could use the 'upgrade' facility in the Planning Act 2008 to try to use that regime.  While I can see that a single exploration or testing application might legitimately be considered not to be nationally significant, it would be more difficult to refuse an upgrade application for the production phase on the grounds that it wasn't nationally significant, given the column inches devoted to the subject if nothing else. But that's by the by.

Paragraphs 27 and 28 of the guidance reveal that not only is planning permission needed but consents from or notifications of up to seven other bodies may also be needed (plus additional consents such as stopping up rights of way).  If only there was a single consenting regime available.

The guidance is keen that any issues covered by other consenting regimes should not be considered by a planning authority considering a planning application, which should concentrate on whether the development is an acceptable use of the land.  Having said that it identifies 16 possible impacts that could be considered by a planning authority at paragraph 30, from noise to site restoration and aftercare.

Paragraph 33 recommends pre-application engagement between the applicant and interested parties and sets out what this could look like. If only there was a regime with a statutory requirement ... you get the picture.

Paragraph 38 recommends that minerals planning authorities 'seriously consider' planning performance agreements (i.e. where the developer pays them to have the resources to handle applications).  It doesn't say whether developers should consider offering them.

Section A then takes one through the application process.  Section B considers environmental impact assessment.  It says 'it is unlikely that an Environmental Impact Assessment will be required for exploratory drilling operations which do not involve hydraulic fracturing' - the implication being that the exploration stage will not require EIA unless it involves fracking at that stage rather than just drilling.

When deciding an application, the guidance firmly states at paragraph 65 that 'Mineral planning authorities should not consider demand for, or consider alternatives to, oil and gas resources when determining planning applications' but that 'minerals planning authorities should give great weight to the benefits of minerals extraction, including to the economy', quite a nudge towards approval.  Some model conditions are usefully included at Annex D - I suspect that most if not all 19 of them will find themselves attached to most fracking permissions.

The guidance addresses separation distances, the idea that these developments should be a minimum distance way from other things, something of a vexed issue when it comes to onshore windfarms.  It says that separation distances could be introduced, but they would have to be effective, properly justified and reasonable.

You may be interested to know that once a site has stopped being used for fracking it could be used for 'creation of new habitats and biodiversity; use for agriculture; forestry; and recreational activities'.  These proposals should be submitted with the original planning application.  In exceptional cases, a financial guarantee to pay for 'aftercare' may be justified.

There is a useful flowchart of the application process and how it sits with other consents at Annex B on page 22.

This is a good example of the government getting a move on and being fairly joined-up when it wants to encourage something new.

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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.