Fracking Guidance

This article is about what 'Guidance' the Government should give to local authorities about planning and fracking, and about whether the decision on planning permission should be taken away from local councillors and given to the Government to take directly.

It comes about because the 'Housing, Communities and Local Government Select Committee' is considering the matter.

The Select Committee will decide - amongst other things - whether the planning guidance for hydraulic fracturing or shale gas extraction should have a comprehensive document bringing all existing guidance together for all those involved in the planning process, and/or whether applications for fracking should be determined by the Government's National Planning Infrastructure system (effectively making it a national, rather than a local, decision).

SYNOPSIS
First we have an Introduction and a bit of background information, then we look at the role and purpose of Select Committees by asking So What is a Select Committee?

Next we look at how Lancashire County Council has responded to the Select Committee's consultation invitation, then at how Fylde Borough Council is being recommended to respond to the Consultation. Then we look at some of the Early reaction to what Fylde might do.

Finally, we add our own Conclusions and provide space for the article to be updated after Fylde's decision at its Planning meeting next Wednesday.

 INTRODUCTION

We begin with a reminder of the visit to Fylde of Jessica Ernst, a scientist, whose Canadian home was adversely affected by fracking - to the extent that within her rurally located home, she is no longer able to use the borehole water the property has relied on since it was built, and she now has to buy in bottled water.

In itself that's bad enough, but, because she is articulate, intelligent, and is possessed of a strong character with a well developed sense of right and wrong and an inquiring, scientific approach to problem solving, she ended up taking on the Canadian Government in court to challenge what their various agencies had done.

Unbelievably, for a civilised country, the Canadian state turned attack-dog, and she has been hounded for daring to stand up for her rights.

All manner of dirty tricks have been played on her to try to stop her court action.

When we first heard her speak (see Jessica Ernst v Canada),  we struggled to believe what we were told.

We could not imagine that any civilised Government could do what she claimed had been done to her.

But everything we were able to check bore out exactly what she had said and, because fracking was just starting to be considered in the UK, we began to keep half an eye on what our own Government was doing.

We began to keep a 'Dave'll Fix it' list showing the decisions that the UK Government was taking to support the fracking industry.

We began in 2012, and by 2015, the list was so long, and the blatant (and in our view improper) changes being made to UK legislation were so obvious, we 'gave up' on the process of recording them. (Readers can follow this link to see the last note we issued).

The fundamental problem is that Government has set its sights on what it is convinced will be the economic and security benefits of shale gas extraction, and these sights are become blind to the collateral damage this exploitation has on communities where shale gas extraction is set to take place.

It's a case where the Government wants the benefits and we have to pay the price.

Except.... the opposition to what they want is increasing day by day in the affected areas, and local folk don't think the price is worth paying

Their voices are increasingly being heard in some parts of the UK.

In fact, it's only in England where enthusiastic support exists. (Scotland, Wales and Northern Ireland have all banned, or are in the process of preventing or discouraging fracking for shale gas to take place)

The latest twist in the English saga concerns the provisions of the 'Infrastructure Act' a piece of legislation that deals with a miscellany of matters related to the UK's infrastructure.

It was bad enough when Government made the absolutely disgraceful change to UK law that allows people to drill under your land without first reaching an agreement with the landowner, or obtaining a court order to do so after having convinced a Judge of the need to deprive someone of these ancient rights.

But that same Act paved the way for what are now known as 'Nationally Significant Infrastructure Projects' (NSIP) to bypass the traditional planning process, and for decisions about them to be taken directly by Government.

And, aware that this is a matter in the Government's sights, the Housing, Communities and Local Government Select Committee is examining it, and has called for views and evidence on whether fracking should be classified as a 'Nationally Significant Infrastructure Project'

We can accept that in some instances - for example in wartime, or in relation to some matters of national public health - urgent decisions about national infrastructure might need to taken and implemented quickly.

But we have no doubt that provisions already exist for such matters of acute emergency.

But this is something different.

This is not an emergency, it is a result of Government's reflecting upon growing public disquiet about fracking.

We suspect the Government knows it is (and always has been) losing the argument for hearts and minds as a result of the very successful campaigns and protests that are increasingly galvanising public opinion against the industry.

So in order to push it forward - against public opinion if necessary - they are considering removing local democratic decision-taking and imposing a national planning regime for shale gas.

What's happening now is that the Select Committee has set off an investigation of the pros and cons of such an idea, and it is in the process of preparing to deliberate on the matter.

 SO WHAT'S A SELECT COMMITTEE?

It's a committee of (usually) about a dozen or so MPs (most often back-benchers) who keep track of what (in this instance) the Department of Housing, Communities and Local Government (and its subordinate quangos) is up to, and what it is spending our money on.

It is investigative rather than legislative entity.

It inquires into matters and publishes reports that might influence others.

Most Select Committees set their own programmes, and choose the matters they will inquire into

For each inquiry, a press notice is issued listing the terms of reference and inviting interested parties to send written submissions.

For most inquiries, the Committee will also hold question and answer "oral evidence" sessions with witnesses. These are held in public, normally in a Committee Room at the Houses of Parliament. Webcasts of recent oral evidence sessions for Select Committee's generally can be viewed at Parliament TV, although there is nothing for the fracking one yet.

Details of current inquiries, oral and written evidence, as well as Reports and publications produced by the Committee can also be found if readers follow this link to the Parliament website for this Select Committee.

Readers can also follow this link to see details of the inquiry specific to fracking

Whilst, in our experience, Select Committees will generally take note of any evidence submitted to them by any group or individual - so long as that submission is relevant to their topic - in the matter of planning for shale gas, the Committee also has some specific questions it would like to hear about. These are:

• Is there the need to update and improve the guidance available?

Is there the need for a comprehensive document incorporating existing and updated guidance?

• What is the status – in planning terms – of the extant Government guidance?

• Should applications for fracking be dealt with as national infrastructure under the 2008 Planning Act?

The inquiry is currently open, and it is accepting written submissions.

The deadline for submissions of evidence for the committee to consider is 14 March 2018.

Any readers wishing to make their own submission can follow this link to the Parliamentary page with information about how to make a submission.

As part of their call for submissions, the Committee has also (as it usually does) written to local authorities to ask for their views.

 LANCASHIRE COUNTY COUNCIL

LCC is the Mineral Planning Authority for this area, and it is they, not Fylde Council, who currently take the decisions about planning permission and fracking.

The exception to this is when they refuse an application and the applicant makes an appeal to the Planning Inspectorate (which is an agency of Government) to achieve a different decision.

In such cases the Planning Inspectorate may (and sometimes do) 'overrule' a decision of LCC. And sometimes, if the Minister thinks it is so important, he 'calls in' the decision and takes it himself.

In such cases, the Planning Inspector hears and considers the evidence, then makes a recommendation to the Minister, who formally takes the decision himself.

Part of the process by which LCC arrive at their decisions on minerals planning is to ask the affected Borough and Parish Councils for their views - as indeed has happened at Preston New Road, and is happening now with Roseacre - which the Minister has decided to call in to take himself.

Lancashire County Council refused both of Cuadrilla's main applications. A planning Inspector came to the view that Preston New Road should go ahead against the wishes of LCC (and a lot of local people), but she did not agree the Roseacre site (on the basis of traffic and transport).

The Minister agreed with her decision on PNR, but thought the traffic matters should be overcome, and that matter is going to a second (or at least re-opened) public inquiry by the Planning Inspectorate in April.

But separately, LCC have also been consulted by the Select Committee about the four matters of concern to them, and the one of those that's causing the trouble at present is whether LCC should continue to have the responsibility to decide planning applications about shale gas.

Readers might think that's arisen because they LCC has refused the two main applications for fracking. It might be thought that Government doesn't believe LCC can be trusted to be sufficiently on-side in their push for fracking so they're thinking about taking the decisions away from them.

That's a perfectly valid line of thought.

Alternatively, it might be a more general drive to jumpstart the planning process for fracking anywhere more quickly.

LCC has received and considered the Select Committee's request for evidence, and we understand their specific response on the matter of infrastructure was:

"This Council believes that local authorities should retain the powers to approve or reject fracking planning applications. Decisions should be made by the County Council, having due regard to current planning policy as set out in the development plan, Government guidance on the National Planning Policy Framework and material planning considerations.

Council therefore resolves to instruct the Interim Chief Executive and Director of Resources to respond to the select committee inquiry with a statement that supports retaining local government powers in this area. The response should also address the other questions about planning policy and guidance posed by the Committee, drawing on the County Council's unique experience in this area."

LCC is, of course, at present, a Conservative controlled council, as is the Government, (and Fylde for that matter).

 FYLDE BOROUGH COUNCIL

Fylde have also been consulted by the Select Committee. This statement was factually incorrect. Please see the update at the end of this article.

Fylde's  Planning Committee meeting (at 6:30pm in the new Council Chamber at the front of Fylde's Town Hall) on Wednesday 7th March will consider what Fylde ought to say in response to the Government's Select Committee, on behalf of Fylde residents.

But something of a storm is brewing, because the advice from Fylde's professional officers is that FBC should tell the select Committee:

1. "The current planning guidance needs to be updated in order to reflect best practice emanating from experience gained from the onshore exploration and extraction of unconventional shale gas.

2. That specific guidance relating to unconventional hydrocarbons is maintained as a comprehensive document that is capable of regular updates, similar to the current online guidance and which explains the relationships and interactions between planning and other consents that control the process.

3. That there is merit in considering applications for fracking as national infrastructure projects under the Planning Act 2008."

4. Readers who want the background to this can follow this link to download the agenda item with the full report.

Although this is a Planning Committee meeting, it's format is what used to be known as  'Planning Policy Committee'  (i.e. it's not dealing with planning applications), and we think that means it's not classed as a 'Programme Committee'

There is usually a Public Platform at the start of programme committee meetings - where members of the public can speak for 3 minutes - but we suspect the Public Platform may not apply to this Planning Policy Committee and there may be no public input on the night.

If any of our readers were planning to go and hoped to have three minutes, to address the Committee, we would advise them to contact the Democratic Services Department staff by email via democracy@fylde.gov.uk  or by telephone on 01253 658658 to check whether there is going to be a Public Platform before turning up.

There is however a public gallery where anyone can go to listen to the debate amongst the councillors as to what the officers are recommending.

Sadly, we can't agree with any of what Fylde's officers are recommending.

Firstly, we don't believe the national guidance (for which, these days, you can read Government instructions) about planning for shale gas should not be adjusted as a result of practical industrial experience. Planning is about balancing competing matters within a planning framework, not about favouring one cause over another, and we do not believe it is appropriate for judgements to be made on industrial experience by mandarins who rarely see outside their ivory towers.

The right place for balancing planning judgements - and especially if they include matters of practical industrial experience - is at a local level where all aspects of the matter have been seen and experienced.

So in our view LCC should not have its local knowledge and experience fettered by central government.

Secondly, we do not believe Fracking should be a 'planning topic' in its own right. It is, and ought to remain one of a number of mineral extraction matters for determination by a local authority who may, if they so wish, consider it as separate matter within their overall mineral planning policies. But it should share the generality of policy constraints that any other mineral extraction operation would be subject to. There should be no 'special case' for fracking in planning policy terms.

Thirdly - and this is the matter that's generating all the heat at present - if Fylde's Planning Committee next Wednesday resolves to approve the recommendation provided by their officers - however weasel-worded and lukewarmly they have phrased it - they will go against the decision of their own Mineral Planning Authority by affording what is in effect succour and support for the Government to take planning decisions on fracking away from Lancashire County Council.

Worse, we think it would be an abdication of Fylde's responsibility to their electorate.

Whilst we recognise that Fylde is not the planning decision-taker in the matter of minerals, (and so it's voice on this matter is less strongly heard), it has incredibly detailed local knowledge available to it from its ward and parish Councillors, and it has a very important duty to perform in respect of representing the views of the residents of Fylde to both Lancashire County Council and to Government.

If it supports the views that officers are recommending, we think many folk here will see that as a betrayal of them as electors and of local democratic accountability.

This is such an obvious no-brainer that we're pushed to ask how it could be that officers could come up with the response that, as a turkey, Fylde should vote for Christmas.

To get behind that situation, you can usually read the officer's report for explanations and justifications as to how they arrived at their recommendation after balancing the competing arguments.

But in this case, there is hardly any justification provided for the views that are advanced.

We're paraphrasing here but mostly you'll read things like: well, it would be better if all the confusing information for our poor residents was all in one place - so having a separate set of guidance is a good idea because it would explain who does what.

And - well the Secretary of State can call a decision in anyway, so it's probably not really locally accountable at all, and it might be better to have more experienced professionals at the Planning Inspectorate or Whitehall to deal with fracking applications directly.

That of course is a direction that ends with saving Fylde quite a bit of cash as its planning department is closed, the staff made redundant, and people have to apply to the Government for planning permission, not to FBC or LCC.

So to us, the Officer arguments seem to be very weak and lily-livered.

And if that's the case, why and how come that's is what is being recommended?

Well, - and let us stress at this point we have no inside knowledge of how this recommendation HAS come about, but we can speculate how it might have been.....

If you have Councillors who see themselves as politicians rather than councillors, and especially when Councillors are steeped in party dogma, it's not uncommon for them to express their views to officers in the hope that officers will see things in the same particular way that they see them.

And it may be that some of the more influential majority party councillors have less worries about fracking, and are more concerned about supporting the Government's economic and security agenda - which itself argues the case for fracking. After all, they are all of the same political persuasion.

As an example of what we mean about party political dogma driving local decisions, we cite an instance with Cllr Fiddler (who also currently chairs the Planning Committee).

In 2011 (under the old 'Cabinet System'), he took an 'Individual Member Decision' to sell off Melton Grove housing in Lytham.

This was one of the most controversial and shameful decisions that Fylde council ever took.

When we reported the Scrutiny Committee meeting considering his decision (in our article 'Melton Grove Call In'), we reported he had told the Scrutiny Committee....

"....he made the decision to sell because he and the Conservatives believed that councils are no longer social landlords, and he doesn't think that Councils are best equipped to run social housing".

Even though we don't agree with a word of what he said to the Scrutiny Committee about Councils running Social Housing, we're not at all saying his decision was improper.

But we do say it is an illustration of national party dogma driving what we think ought to have been a more locally nuanced decision.

So it may be that some of Fylde's officers have become convinced that local councillors being less exposed to democratic pressure might be a good thing, and that would likely be the case if the Government took all the decisions on fracking.

Well - we, and quite a few others we know, would beg to differ.

 WHAT HAS BEEN THE REACTION SO FAR?

Well, there is quite a bit of anger amongst those opposed to the fracking process in Fylde.

Several readers have contacted us to express astonishment and dismay that Fylde is being recommended to tell government there is merit in the decisions on shale gas being taken by Government itself.

Not untypical is the quote from Fylde Borough and Warton with Westby Parish Council's Cllr Julie Brickles who said:

"People need to understand that Fylde Borough Council are effectively washing their hands of difficult decisions and advocating the undermining of local democracy, rendering themselves obsolete."

And Frack Free Lancashire are questioning the statement in Fylde's report which says what Fylde is being asked to decide has no implications on Human Rights and Equalities regulations, nor on its Sustainability and Environmental Impact, nor on Health and Safety Risk Management.

After going on to explain that based on its own recent report on Gas Security and Supply (October 2017), the Government had indicated that shale gas was not needed for energy security, their spokesman said:

"From the government's own analysis, fracking cannot be considered a Nationally Significant Infrastructure Project if there is no national need. Local democratic bodies must be allowed to determine unnecessary and unwelcome applications from the oil and gas industry.

Cuadrilla's activities at Preston New Road have already clocked-up five breaches so far this year, resulting in warnings from the Environment Agency. To place decisions relating to this unwanted industry under central government control would be an abuse of our democratic process."

 OUR OWN CONCLUSIONS

At present, this is where the matter rests.

We hope (and confidently expect) some of the councillors on Fylde's Planning Committee will propose something other than that which the officers are recommending.

We regard it as essential that decisions are taken as locally as possible because that's where the knowledge of the impact exists.

This is where the fracking test sites are located, and it is unacceptable for Government to routinely usurp the local democratic processes and local knowledge.

 And that is especially the case when provisions already exist for Government to have local decisions changed via an appeal, if both applicant and Government think the local decision not given enough weight to some of the arguments, or if there has been some sort of failure of process.

We expect to add the result of Fylde's deliberations after the Planning Committee Meeting next Wednesday

 FYLDE'S DECISION

UPDATE 8 March 2018

The good news is that the officer's recommendation was not accepted, and a response calling for the status quo to prevail - and also expressing support for the response made by LCC was approved in its place.

The other officer recommendations were said to be non-contentions and the Committee approved them as recommended. They are contentious as far as we were concerned, (and some of our readers indicated they thought so as well), but at least the main concern has been discharged.

The change was proposed by the Chairman and seconded by Cllr Mrs Oades (who, based on the views we have previously hear her express on such matters, would probably have been fired up ready with all guns blazing had the Chairman not done what he did).

Readers will have to come to their own view as to why the Chairman came to disagree with his officers. They talk regularly, and it was a surprise to us that this dichotomy arose.

It may be that the Chairman recognised there would be significant public concern if the recommendation was approved, and he backed away from having that argument over a consultation response. Or perhaps party colleagues at LCC had twisted his arm.  Either way, it was a welcome result.

We also have two further points to make. The Chairman opened the meeting with an explanation as to why there was no public speaking at this meeting. He said:

"....This evening's item on the agenda, we are not being asked by the Select Committee for our views. They make it very clear they're only seeing the views of the Mineral Authority and in this case we all appreciate that is Lancashire County Council. So we are not, in any way, being asked to give an official response. We have volunteered to have it on the agenda this evening simply for transparency and to bring people up to date in what's going on behind the scenes.

And that's basically the reason why the difference between the two, is the reason why the Chairman has decided, and public participation was not appropriate on this occasion....."

This matter of public speaking is something we want to look into in more detail for a future article.

This morning, we checked with the Clerks to the Select Committee in Parliament to ask for a list of which groups or organisations had been invited to comment. Whilst Cllr Fiddler was correct as far as he spoke, he didn't quite give the full story.  The Clerks told us:

"This inquiry has been publicised in the usual way - we have publicised it on our website and our Twitter account, and a press release has been sent out to national and local media. Therefore, the Committee has not invited specific groups and organisations to respond to the inquiry."

So it would appear that the County Council was not invited (as Cllr Fiddler has supposed), because no-one had been invited to submit evidence, and we're happy to correct what we said previously about that.

The second point we need to make is that, before the Select Committee's closing date for evidence, the Government has issued some revisions it proposes to make the National Planning Policy Framework (effectively the Planner's Bible).   This document used to say the following about fracking:

When determining planning applications, local planning authorities should “give great weight to the benefits of mineral extraction, including to the economy."

The proposed change says Minerals Planning Authorities should:

"...recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy, and  put in place policies to facilitate their exploration and extraction...."

That's our emboldening, but our readers will recognise that if this change is made, it will require Mineral Planning Authorities such as LCC to pro-actively support fracking by having policies to facilitate its exploration an extraction.

This is yet another disgraceful legislative change that seeks to favour the fracking industry and remove local democratic accountability.

The contempt in which the present Government seems to hold local democracy is further amplified by the fact that this proposed change has been issued even before Parliament's Select Committee has concluded its consultations on changes to the shale gas regime, let alone come to a conclusion and published its report.

Dated:  2 March 2018