Revised requirements relating to planning applications for onshore oil and gas 05Sep2013

Government support of unconventional onshore gas continues despite this summer’s protests by anti-fracking activists at Balcombe. Hot on the heels of the new “Planning practice guidance for onshore oil and gas” published by Department for Communities and Local Government in July; DCLG has opened a consultation into revising the planning application requirements for onshore gas.

The consultation, which is open for comments until 14th October 2014, acknowledges that the above ground footprint of onshore gas operations is relatively modest in comparison to the larger areas underground where gas is extracted which nevertheless still require planning permission. Consequently, planning applications will have a vast ‘red line’ boundary despite the above ground development being, generally, a more modest 1-2 hectares.

Currently an applicant for planning permission would be required to serve notice on all landowners and tenants within the ‘red line’ boundary; a significant task in itself. The application would also have to be accompanied by the application fee which is calculated with reference to the area occupied by the ‘red line’ boundary. The existing fees guidance advises that the“…development of oil and gas reserves (other than Category 8) is regarded as above ground working in this context” the guidance creates, rather than resolves, ambiguity as to whether the fee should be calculated on the area of the more modest above ground workings or the more extensive ‘red line’ boundary.

The first two proposed amendments seek to rationalise this distinction within the planning system.

Firstly, the Government proposes to limit the requirements to serve notice on landowners to only those who have an interest in the land where the above ground workings will be sited.

Secondly, the Government proposes to amend the fees Regulations to clarify that the application fee should be calculated on the basis of the above ground workings only.

The final proposal is to replace the plethora of application forms provided by each minerals planning authority with a single onshore oil and gas development application form published by the Secretary of State.

The proposals are modest, practical and sensible and demonstrate that the Government is taking an active interest in limiting the barriers to the exploitation of England’s onshore oil and gas reserves.

However, by divorcing the requirement to serve notice from the planning ‘red line’ boundary the proposed amendment does introduce a new area of risk for developers. Should the Government go ahead with this proposal care will need to be taken that the above ground envelop is drawn sufficiently wide to accommodate all above ground workings (including any unforeseen design engineering or geological issues). There is a risk that changes to above ground workings brought about at the discharge of conditions stage may lead to above ground development on the land of those who were not notified at the initial application stage.

Should this occur disgruntled landowners may pursue legal challenges although it remains to be seen whether they would the courts would be sympathetic especially in view of the delay inherent in such a challenge and the wider public import gas extraction.

Jonathan Leary

Assistant Solicitor