This page will help you respond to the government consultation on whether to allow non-hydraulic exploratory drilling for shale gas to be considered as Permitted Development (PD). In a nutshell, this would mean that a fracking company that wants to develop an exploratory drilling well pad would not need to go through the planning process, as they do currently. If you would like a bit more background, please check out our quick guide to PD and NSIP.
The following information and guidance is also available as a downloadable PDF document by clicking on the link below:
Before you make your own submission, we suggest you take a few minutes to read the government’s Consultation Guidelines, which includes information on the Permitted Development regime and the government’s reasons why they think this is such a fantastic idea. The document isn’t very long and helps to provide some background and context for each question.
How to submit your response to the consultation
The government is keen for everyone to respond to the consultation online, which you can access by clicking here, or by cutting and pasting this Survey Monkey link into your browser: https://www.surveymonkey.co.uk/r/9LDDSVZ
Alternatively, you can download their Word Document response form by clicking on this link:
When you’ve filled this in, you can send your response as an attachment to this email address: firstname.lastname@example.org
or post it to this address:
Planning Infrastructure Division
Ministry of Housing, Communities and Local Government
3rd Floor, Fry Building
2 Marsham Street
The deadline for this consultation is 11.45 pm on Thursday 25th October 2018.
Guidelines on what to say in the consultation
The introduction to the consultation guidelines states that the government are “seeking views on the principle of granting planning permission for non-hydraulic shale gas exploration development through a permitted development right.”
However, many of the questions in the consultation appear to be about how best to implement a permitted development right for exploratory drilling for shale gas – not about the principle whether this is a good idea or not. You might conclude that the consultation was written with the intention of delivering the ‘right’ answer from the government’s point of view. You therefore need to be careful in how you answer the questions, so you don’t inadvertently end up supporting the principle of permitted development by default.
Question 1a (which on the online form is very confusingly called “3 Question 1a”) asks: Do you agree with this definition to limit a permitted development right to non-hydraulic fracturing shale gas exploration?
This is followed up by Question 1b – which on the online form is called “4 Question 1b!” – “If no, what definition would be appropriate?”
The definition this question refers to is (again rather confusingly) not on the online form or the downloadable form, but on page 12 of the Consultation Guidelines (para 21). The wording of this definition is: “Boring for natural gas in shale or other strata encased in shale for the purposes of searching for natural gas and associated liquids, with a testing period not exceeding 96 hours per section test”.
So, respondents are being asked to either agree with the government’s definition – thus by implication agreeing with the principle that exploratory drilling for shale gas should be classed as permitted development – or asked to write their own, which again amounts to support of the principle (but with a different definition). This, in our view, is not a fair question and is a bit like being asked ‘Would you prefer to be shot or stabbed?’.
We therefore recommend the following responses:
Question 1a – Answer ‘No’.
Question 1b – Rather than try to rewrite the definition, we suggest you make the following points in the box provided, either by using one of the sentences or paragraphs below, or writing a similar point in your own words. And don’t forget to change ‘I’ to ‘We’ if you are responding on behalf of a council or other organisation.
Question 2 asks: “Should non-hydraulic fracturing shale gas exploration development be granted planning permission through a permitted development right?”
This one is easy. The answer is ‘No’.
Incidentally, surely this should be the first question of the consultation? And it’s also interesting to note that there is no space available here for people to give their reasons why they do or don’t support such the proposal – perhaps to avoid having to deal with lots of ‘reasons against’ responses.
Question 3a asks: Do you agree that a permitted development right for non-hydraulic fracturing shale gas exploration development would not apply to the following?
· Areas of Outstanding Natural Beauty
· National Parks
· The Broads
· World Heritage Sites
· Sites of Special Scientific Interest
· Scheduled Monuments
· Conservation areas
· Sites of archaeological interest
· Safety hazard areas
· Military explosive areas
· Land safeguarded for aviation or defence purposes
· Protected groundwater source areas
This question is again a bit of a minefield. Firstly, the wording of the question itself is written in a (deliberately?) tricky way, and by asking if you agree whether something should NOT apply it appears to be (deliberately?) designed to induce a false response.
And secondly, it again assumes that the principle of making exploratory drilling permitted development has already been accepted, and is simply discussing what parameters and restrictions should be placed on such developments.
After much thought, we think that the question is asking whether the listed areas (AONBs, National Parks, etc.) should be excluded from any Permitted Development rights, if such rights are imposed by the government. We therefore recommend that you answer ‘Yes’ to Question 3a.
Question 3b asks: “If no, please indicate why.”
As we have answered Yes to Question 3a, this could be left blank. However, we suggest you take the opportunity to clarify your answer to 3a, and to express your dissatisfaction with the way the question is worded, and the fact that (like Question 1) it assumes that the principle the consultation claims to be exploring has already been accepted. Here are some options of what you can say, or of course please write your own version.
Question 3c asks: “Are there any other types of land where a permitted development right for non-hydraulic fracturing shale gas exploration development should not apply?”
This is an opportunity to state your opposition to the principle of making non-hydraulic exploratory drilling for shale gas, and is probably the best place to include more general concerns about the proposal (and the impacts of fracking in general). Here are some possible responses to this question, or please write your own.
Question 4 asks: “What conditions and restrictions would be appropriate for a permitted development right for non-hydraulic shale gas exploration development?”
This question is again asking asks about what restrictions should be placed on a permitted development regime for non-hydraulic exploratory drilling for shale gas – which again assumes that the principle on which this consultation should be based has already been decided, and it’s just a matter of laying down appropriate boundaries and conditions. And we, as respondents, are again left with the decision whether to play along with the consultation and list other restrictions that should be placed on exploratory well-sites – thus by implication agreeing with the principle of Permitted Development to which we are strongly opposed – or refute the basis of the question.
Here are some things you can say in answer to Question 4. Take your pick, mix’n’match or write your own!
Question 5 deals with the issue of Prior Approval, which needs a bit of explanation. According to Para 31 of the Consultation Guidelines, “Prior approval means that a developer has to seek approval from the local planning authority that specified elements of the development as listed in the legislation are acceptable before work can proceed.”
However, the guidelines go on to say, “The requirements relating to prior approval are much less prescriptive than those relating to planning applications. This is deliberate, as prior approval is a light-touch process which applies where the principle of the development has already been established.” A light-touch process? This sounds like it would be almost impossible for a local authority to exercise any control, or refuse prior approval if exploratory drilling becomes permitted development.
And there’s more: “For shale gas exploration, local consideration of particular elements of the development may potentially be required to be approved by the relevant mineral planning authority through a prior approval process. By way of example, the prior approval considerations might include transport and highways impact, contamination issues, air quality and noise impacts, visual impacts, proximity of occupied areas, setting in the landscape, and could include an element of public consultation.” Which makes us think – if all these things need to be taken into consideration, then surely they should be scrutinised in detail through a standard planning application, not waved through via the ‘light touch process’ of prior approval.
This brings us on to Question 5: Do you have comments on the potential considerations that a developer should apply to the local planning authority for a determination, before beginning the development?
Here are some things you could say in your response to this rather confusingly worded question.
This question asks: Should a permitted development right for non-hydraulic fracturing shale gas exploration development only apply for 2 years, or be made permanent? – and then gives you two tick-box options – 2 years, or permanent. There is no option that anyone opposed to the principle of the consultation can answer, or any comment box to express an alternative view.
Again, we feel that this question is another example of ‘leading the witness’ in a consultation that claims to be consulting on the principle of permitted development, and if either answer is ticked it could be considered as approval of the general principle. It’s like asking your grandmother if she would like to be thrown in prison for two years or for the rest of her life.
We therefore recommend you leave this question blank and do not tick either option.
This relates to the legal requirement that these proposals are assessed by reference to the public sector equality duty contained in the Equality Act 2010. Question 7 reads: Do you have any views the potential impact of the matters raised in this consultation on people with protected characteristics as defined in section 149 of the Equalities Act 2010?
We have no comment on this question and suggest that you leave it blank.
Or, if you wanted to be a bit cheeky, you could use this as a comment box for question 6 and add something like this:
And that’s it! Don’t forget to send in your responses, either online or by email/post, and please spread the word about this issue with neighbours, friends, family and colleagues. Also please make sure you contact your MP and local councillors to ask them to oppose this proposal.
Oh, there’s one last thing. There is another consultation going on in parallel to this one, on the plan to make full-scale commercial fracking a Nationally Significant Infrastructure Project. This means that decisions about fracking production will be taking out of the hands of local communities and their elected representatives, and will instead be made by ministers in Whitehall and the government-appointed Planning Inspectorate. To find out more, and for guidelines on how to respond to this equally important consultation, click here.
Thanks for taking part in this consultation, and we hope these guidelines were useful. See you next time!