The local authorities’ perspective on fracking

Money iStock 000008683901XSmall 146x219David Brammer discusses the role local government has to play in awarding fracking rights and regulating the industry.

What does it mean for a local authority if a company is granted rights to frack in their area?

Proposals for fracking are subject to the Town and Country Planning Act 1990 and the Minerals Planning Authority for that area (a county council or unitary authority in urban areas has that responsibility). Consent from the Department of Energy & Climate Change for drilling is only given once planning has been obtained.

Normal planning application procedures appear to be relevant, but the Government is consulting on changing how landowners and tenants are notified. Notification would be required to be served on individual owners of land above ground area where work is needed, but the requirement may be removed for owners of land where only underground operations may take place.

As with all planning decisions, the judgment is based upon the relevant material considerations taken into account when a planning decision is made. In July 2013, the Government provided a list of ‘principal issues’ for consideration in planning decisions for onshore oil and gas sites. The guidance is to assist councils taking such planning decisions and to provide more certainty about the issues they should be talking into account. However, this guidance has also been criticised in the media as being ‘biased towards granting permission’.

People will have seen the well publicised issues from the recent Queen’s Speech regarding the changes in trespass laws, and the introduction of more planning reforms to speed up development.

Are local authorities able to introduce additional requirements (taxes or otherwise) for fracking companies to fulfil? 

Not that I can see. However, councils approving local sites for fracking will be permitted to retain all the business rates from the venture—estimated at £1.7m a year. It will be argued by some that this is an incentive which will influence authorities to grant consent and this may also raise issues of alleged bias towards the process.

Does a local authority have any obligations to ensure the safety/appropriateness of the fracking operation?

All drilling operations are subject to notification to the Health and Safety Executive (HSE), but this will not directly be the responsibility of the council (although councils do have some health and safety responsibilities). Additionally, each site is assessed by the Environment Agency (EA).

The UK has one of the most stringent offshore drilling safety regimes in the world and, in 2012, the EA and HSE produced a joint working strategy for monitoring and inspection of unconventional oil and gas operations.

Should local authorities be considering additional health monitoring if fracking is undertaken in their area?

Concerns about fracking include greenhouse gas emissions and incidents of water pollution, although again, these are not directly part of the council’s responsibility. Much of the information regarding environmental and health risks has come from the US. The EA and the Royal Academy of Engineering view associated risks as being ‘unlikely’.

Do fracking companies have any obligations to involve the local authority in the decision-making process?

The fracking companies must involve the council and any other regulatory agency as set out above and where appropriate in seeking consents, but are under no other obligation to consult. It is usual for ‘pre-application discussions’ to take place before any major planning application is submitted.

Some councils have investments in fracking companies, which in turn will lead to further accusations of bias and conflicts of interest. Councils will say that they are very used to dealing with issues such as this and to separating out their various functions and roles where this is required.

David Brammer is head of SGH Martineau's planning practice. He was interviewed by Fran Benson.

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