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27 July 2018

802: Government consults on bringing shale into DCO regime

Today’s entry reports on a consultation to bring shale projects into the Development Consent Order regime.

With news that Cuadrilla has been awarded the first ‘hydraulic fracture consent’ to carry out horizontal drilling at its site at Preston Road in Lancashire (still at the ‘exploration’ stage), the Government has launched a consultation on bringing the next, ‘production’ stage of fracking into the Planning Act 2008 regime.

This is despite the Housing, Communities and Local Government Select Committee issuing a report on 2 July that concluded, baldly (at paragraph 83 on page 28):

‘Fracking applications should not be brought under the NSIP regime.’

Fracking has proven very controversial in the UK, and the time taken from making the early exploration applications to the commencement of drilling has been protracted – the Preston Road site in question has its application made in June 2014 (by way of a standard planning application) and started drilling (not horizontally yet, presumably) in August 2017, due to there being an appeal and judicial review.

The so-called ‘early stage’ consultation document (suggesting more steps later) can be found here.

After a lot of preliminary text about shale exploration and the Planning Act 2008 regime, the document gets down to business on page 20 of 24, asking six questions.

Questions 1 and 2: do you agree that major shale gas production projects should be included in the NSIP regime, and do you have any evidence to supply in support of your view?

Expressing it as ‘do you agree’ suggests that the Government will add shale to the regime unless (or even if) there is a strong response against doing so.

Questions 3 and 4: how should the threshold be defined (nine options to choose from), and again any supporting evidence?

Possibilities include number of wells or well-sites (pads), estimate total volume of gas or annual extraction rate, amount of other infrastructure needed. This is a key question and quite difficult to answer – other thresholds have appeared simple but have been difficult to interpret.

Questions 5 and 6: when should this be introduced, and any supporting evidence?

Two options suggested: now, or once a few exploration sites have yielded results. If not now, it is possible that the earliest production applications will go under the Town and Country Planning regime.

The consultation doesn’t ask a number of questions you might have expected it to ask, so here are my unofficial extra questions:

Question 7: should the regime be optional or compulsory for projects above the threshold?

That could be dealt with by the setting of the threshold – if it is high then it will make most projects’ ability to use the regime optional, if it is low, it will largely be compulsory.

Question 8: should there be a National Policy Statement to cover such projects?

The condoc says that it is not seeking views on an NPS ‘at this stage’, suggesting it might in the future.

Question 9: should other consents needed for shale production be able to be included in a DCO (with or without the consent of the body that would otherwise have dealt with it)?

The presumption is that other consents will continue to have to be made separately.

Question 10: what transitional arrangements should be put in place?

How far would a project have to have reached to be able to carry on down the existing route? Obtained a scoping or screening opinion, actually made an application?

So, another new potential NSIP type. So far, bringing new areas into the regime (business and commercial, housing, geological waste) has not usually resulted in any applications. We shall see whether this goes the same way.

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