Consultation on revised requirements for onshore oil and gas planning applications

On 2 September 2013, the Department for Communities and Local Government (DCLG) launched a consultation on proposed revised requirements for planning applications relating to onshore oil and gas developments. The consultation period closes on 14th October 2013.

When publishing new planning practice guidance relating to onshore oil and gas in July of this year the Government flagged that the existing secondary legislation would require amendment in relation to planning applications for these categories of development, to provide greater clarity on the application requirements, and to ensure that they are fit for purpose and proportionate.

The Government is now proposing three amendments relating to: i) notice by applicants of applications for planning permission; ii) a standard application form for onshore oil and gas; and iii) application fees.

Notice by applicants of applications for planning permission

Current legislation establishes that onshore exploration of hydrocarbons shall only take place if the operator obtains the necessary permits and approvals related to the licence, which include a planning permission (exceptions are made for some initial seismic work). Applicants other than the owner of the land related to the application are required to give notice of the application to the respective owners or tenants. Legislation currently extends the notice requirement to all the land where operations will be carried out, irrespective of whether above or underground, and regardless of the extent of underground activity.

In the Consultation the Government considers that underground operations for the winning and working of oil and gas are different in character from other forms of development: surface development is limited and on a relatively small surface area; extraction of oil and gas can be at depths of greater than 1km; it is often not possible to define the extent of lateral drilling at the time of the planning application, which could therefore require a widely drawn application area. The Government considers that subsurface operations have a different (mitigated) impact on landowners/tenants when compared to development on the surface (temporary buildings, infrastructure and production plants), and that it is unreasonable and impractical to require applicants to serve notice over such a potentially widely-drawn area and upon numerous parties.

The proposed amendment is to remove the requirement on the applicant to serve notice on the landowner/tenants in those areas where operations will take place exclusively underground. Applicants would still be required to undertake local publicity via local newspapers and site display.

Standard Application Form for onshore oil and gas

The consultation also sets out a standard application form to be used by the local mineral planning authorities. The Government has proposed a model form to ensure consistency between applications covering areas with different local authorities. However, local authorities will still have powers to require further information to the extent that it is necessary to determine the application. The new form is expected to be used for a range of onshore oil and gas related planning applications, such as full planning permissions and renewals.

The draft form covers a variety of topics and all applicants are required to provide information in relation to: i) Ancillary Operations, Associated Development and Transport; ii) Environmental Effects; iii) Restoration, Aftercare and Afteruse; iv) Oil and Gas Development; and v) Benefits of the Development. The planning guidance published in July mentioned that when assessing those documents local authorities should focus their analysis on whether the intended development is an acceptable use of the area and the corresponding impacts.

Application fees

The last proposed amendment aims at clarifying the factors which should be taken into account when calculating application fees. The Government proposes to amend the Fees Regulations (and to produce new Fees Guidance to replace Circular 4/2008) so that for the purpose of onshore oil and gas development fees should be calculated on the basis of the area of above-ground works only.

Comment

Although the proposals apply to all onshore oil and gas applications, this consultation comes in the context of different initiatives taken by the Government and Operators to accelerate the exploration of the country’s shale gas potential. Earlier this year, the Government undertook a consultation on tax incentives to encourage exploration and provide certainty on the long-term treatment of shale gas. For their part operators have proposed a scheme to ensure local communities share in the benefits, with a commitment to provide at least £100,000 per well-site where hydraulic fracturing occurs at exploration phase, and 1% of revenues. The Environment Agency also announced steps to streamline and simplify regulation of exploration activity while maintaining environmental protection.