Shale Gas Fracking – Klondyke, Chaos or Compromise

Those of you of a certain age will doubtless remember the award winning American TV series The Beverly Hillbillies, about the poor ,backwoods, Clampett family transplanted to Beverly Hills, California, after inadvertently striking oil on their land. Could shale gas be the next ‘Texas Tea’?

Living as I do in Blackpool, where shale gas exploration in Britain kicked off last year, listening to the doom mongers I was fully expecting to be thrown out of bed to disappear – house and all - into the bowels of the planet as massive ‘earthquakes’ generated by the shale gas extraction process rocked the North-West to its foundations. The reality was, well, nothing, nada, nul point. I asked my wife whether the earth had moved for her at all but not unsurprisingly received the same response. I’m pretty sure she knew I was talking about Fracking.

For those of you who have no idea what I’m talking about, here’s a quick recap. Unlike the fossil fuel extraction we recognise from say the North Sea - where oil and gas is trapped in underground reservoirs and pumped out via an oil/gas well. 

Shale Gas is actually embedded in rock strata and cannot be extracted in the usual manner. It is necessary to pump fluid into the rock under high pressure which then fractures the rock (hence Fracking) and liberates the gas. ‘Propant’ such as sand or ceramic beads is used to hold the cracks in the rock open and the fluid, combining water with additives, gels and acids is used to carry the gas back to the well head.

And therein lies the problem. Fracking activity gave rise to some minor tremors in Blackpool that put a stop to exploration works whilst the Government researched and considered the matter. There are also strong concerns about environmental contamination from the ‘smart water’ used.

The real issue is that shale gas underlies mainland Britain, rather than just being offshore, and this brings the issue closer to people. The extent of potential shale gas reserves is shown on the map below and this is naturally going to exercise most peoples’ minds, not just the NIMBY lobby.

The anti’ lobby kicked into action big-time, making the current grouses about wind farms, energy from waste schemes and HS2 look like minor neighbour disputes. As ever the truth – such as it is – is different from the perception. Much has been made of experiences in the US, with contaminated domestic tap water bursting into flames and even the risk of people glowing in the dark as Naturally Occurring Radioactive Material (NORM’s) is brought to the surface. There are several very emotive websites and YouTube video’s; some involving young children who I doubt really know what they are objecting to. You see the vehemence with which this latest ‘blot on the landscape’ is being challenged.

I’m not going to defend or object to shale gas exploration, but here are some facts. The Fracking process is periodic, so any tremors that might occur from time to time are not continuous. Government research published in June 2012(1) noted that the tremors were almost not recordable in extent and equivalent at worst to a lorry passing a house, “unlikely to be felt by anyone”. The amount of water used in the process is not deminimus but, “the amount needed to operate a hydraulically fractured shale gas well for a decade may be equivalent to the amount needed to water a golf course for a month.” Perhaps we need to start looking at sustainable water use provisions in other areas than shale gas? The additives amount to no more than 2% of the water used and most are recovered to the surface for subsequent treatment. The wells are sunk at depths far below aquifers and the risk of any contamination is more likely from surface activity.

But with all the apparent angst there must surely be something to the objections. Various European countries including Denmark and France have banned Fracking. The problems appear to arise from lack of adequate control over the process in the US resulting in natural concerns for the same problems arising here. This is particularly directed to waste water treatment, which is far less rigorously controlled in the US than here in the UK, and the commercial secrecy surrounding the smartwater recipe leading to inevitable  conspiracy theories. The same treatment processes just would not be allowed in this country. And therein lays the difference between the UK and other countries – Regulation.

Oil and gas belongs to the Crown who licence exploration and can apply a diverse range of conditions. The licencing process is rigorous and requires the satisfaction of numerous criteria as well as meeting high technical and financial hurdles. Licences are issued in 10km blocks. There are three rounds of licencing involving 6 years for exploration, 5 years for development and then 20 years for production on a ‘use it or lose it’ basis, with escalating annual charges to make sure that licences are efficiently implemented.

The Environmental Permitting Regulations 2010 are relevant, which although they have yet to fully catch up with shale gas exploration, are sufficient even now to provide strong environmental controls. In addition there are controls exercised via the Water Resources Act 1991 and Water Industry Act 1991.

The requirements of the Petroleum Act 1998 and Mines (Working Facilities & Support) Act 1966 apply. Here again they are playing catch-up but have a bearing on works.

The town planning system also applies, with the usual development controls and consultation requirements, together with screening for EIA in combination with the raft of local and national planning policy.

So, unlike Jed Clampett, simply discovering shale gas reserves on your land is not going to lead immediately to unlimited wealth. In fact the real value to landowners at the moment is debatable. Because the gas is spread widely there are no specific 'sweet spot' locations for drilling and one farmers field may be just as useful as his neighbour. As the landowner does not have a share in the reserves the income is simply derived from letting the land. Not inconsequential perhaps, but by no means involving a mansion in Beverly Hills any time soon.

The jury is out on whether shale gas exploration and extraction is going to take off in this country. The Blackpool ‘field’ is allegedly sufficient to provide the UK with gas for some 56 years. The USA is now self-sufficient to the extent they have begun exporting gas from shale reserves. What Government could look that gift-horse in the mouth given our emerging fuel deficit? After so long benefitting from largely 'out-of-sight and out-of-mind' North Sea reserves, the last thing UK PLC wants to become is beholden to overseas suppliers who might feel inclined to turn off the tap at some point in the future. However, the level of Regulation and attendant cost in extracting the gas on mainland UK may well deter the larger players who can go elsewhere in the world to do their business without the same constraints. 

I anticipate a more considered, compromise, approach to shale gas exploration will emerge from Government quite rapidly in both planning, environmental and licencing policy, in order to address the concerns surrounding its development, but aimed at enabling future growth in this potentially vital energy source. We are not in my view going to see a 'dash for gas', with wells popping up like daisy's in every back garden. And by the time we are all benefiting from home grown gas supplies feeding our ever increasing demand for cheap fuel, there will be something even more 'horrendous' for nay sayers to get their teeth into. 

1. Report by Royal Academy of Engineering and Royal Society – Shale gas extraction in the UK 

For all your planning queries go to www.ruralurbanplanning.co.uk

Planning law changes to make resubmissions easier

Courtesy of the Planning Portal

More developments than before will be able to go-ahead without going through parts of the planning process a second time following planning law changes due to come into force shortly.

The Town and Country Planning (Development Management Procedure) Order 2010 (DMPO) has been amended to extend the time developments can take advantage of exemptions in the DMPO.

Developments that have received planning permission that are still within their time limit but where work has not yet begun will not have to re-submit design and access statements, conduct full consultations, or provide full plans and drawings when applying for a replacement planning permission.

The amended Order applies the exemptions to those seeking a new planning permission to replace an existing planning permission where the original was granted on or before 1 October 2010.

It applies only to developments where building has not begun and the time limit for that work to begin has not passed. The Order previously only applied the exemptions to permissions granted before October 2009.

The amended Order also changes the rules governing decision notices given by local authorities to applicants for planning permission.

The amendments to the Order come into force on 1 October 2012, with the provisions on decision notices coming into force on 1 December 2012.

View the ‘The Town and CountryPlanning(Development Management Procedure) (England) (Amendment No. 2) Order2012’

It's Not The Planning Officers It's the Committee's

Last week the Government announced that the planning system was to be relaxed yet again (to the point of virtual non-existence apparently) and they were "Calling time on poor performing town hall planning departments, putting the worst into ‘special measures’ if they have failed to improve the speed and quality of their work and allowing developers to bypass councils. More applications also will go into a fast track appeal process".

Eric Pickles added, "... some councils need to raise their game, by failing to make planning decisions in a timely way. Planning delays create uncertainty both for local residents and local firms. So we will introduce a series of practical measures to help speed up planning decisions and appeals, and major infrastructure".

Now hold on a minute. I travel around Britain dealing with a wide variety of authorities all over the place and frankly, in over 30 years of planning applications, I have come across very few which could honestly be said to have been 'poor'. Irritatingly wedded to Local Plan policy irrespective of the circumstances, Yes. Hugely over-worked and struggling to meet targets because the average officer is bogged down in procedural requirements whilst doing three peoples work at half the pay. Certainly. But after all, they are only obeying Government orders.

I'm sure that somewhere out there there might be an authority that needs to be a bit more positive, or a planning team that could get its act together a bit better. Was it ever thus. Mrs B tells me that every time I step out of the house.

NO. I tell you where the screw up comes, when an application goes to committee. Sadly I sit in too many committees nowadays where members clearly have little or no understanding of even basic planning regulations. 

I sat in a committee meeting not so long ago which quite frankly warranted a prime time Friday night comedy spot. The sheer lack of any understanding of the application, its background, or the Officers detailed report, combined with the tragically poor level of (un-planning) debate would have been laughable if it hadn't been so serious. It made the Parish Council meeting sketches in the Vicar of Dibley look like a Fellows meeting at the Oxford Union.

My 'three minutes of carefully crafted fame' explaining, updating and imparting useful information sailed blissfully over the committee's head. They were on an entirely different planet.

Don't get me wrong. There are some excellent committee's out there with members who bother to prepare and understand the planning law and know what they're doing. But I am here to tell you that they are increasingly in the minority. I don't know what has happened in recent years but the quality of planning committees has really taken a downhill slide. Maybe it's because most applications are dealt with under delegated powers nowadays. 

OK. So its not the sexiest committee in the council, but it is the one that the public at large are most likely to come across in their everyday lives. In that case it should be the one that can demonstrably show at least some semblance of understanding what it is doing.

It is getting so bad I am professionally embarrassed for the Officers who have to sit there on a monthly basis patiently explaining basic planning law to people who evidently can't be bothered to learn it themselves to do their job, or don't remember from the last time they were told - in the previous case, for some. 

Dave, Eric. If you think I am joking, check out a few planning committees and see where the screw-ups really happen. Don't blame the planners. If you are handing planning back to the people, make sure they know what the devil to do with it once they've got it. Therein lies the ways to quicker, more satisfactory decision making and fewer appeals. 

Using Floorspace over Shops – Your Permitted Development Rights

Photo Courtesy of Baker Pearce Ltd

The current rush of blood to the head of the Government offering all kinds of changes to permitted development rights and relaxation of planning has had my phone ringing off the hook with people seeking clarification as to what they can and can't do. 

Of course, we will have to await the amending Regulations, but one particular question seemed to recur sufficiently often to encourage me to blog about it here.

The issue at hand revolves around the opportunity to swap and change the use of floorspace over a shop.

The Town & Country Planning (Use Classes) Order 1987 sets out a number of specific Use Classes for planning purposes. You do not need planning permission to change the use of a building within the various confines of each use class, subject to any limiting criteria that might apply. So, for example, you can change a shop (A1) used for retail sale purposes to a funeral directors without requiring planning permission as both types of use fall within the same use class. A handy free schedule or wall chart are downloadable [here].

Equally, by virtue of the Order, you can change between certain use classes without the need for planning permission. You can, for example, change from a Restaurant or Café use (A3) to a Shop use (A1) but NOT the other way around.

Class A1 Shops and Class A2 Financial & Professional Services are both use classes that relate to buildings likely to be found in high street locations, have a ground floor window display and where services are provided principally the visiting members of the public. In either case there is a provision to allow a mixed use with a single flat over the shop without the need for planning permission. In other words if you have a shop with rooms over it that are used as part of the shop (say for storage purposes) then it is possible to convert that to a flat leaving the shop below. Equally, if you already have a flat over a shop it can be converted back to shop use in its entirety without needing planning permission. The same applies for any building used for the delivery of financial and professional services (Class A2)- for example an estate agents, travel agents etc.

However, the Use Classes Order does not explain how this opportunity occurs. The relevant planning controls are in fact exercised through the Town and Country Planning (General Permitted Development) Order 1995 (as amended).

Part 3 Class F and G of the GPDO allow as follows:

CLASS F.    Permitted development

Development consisting of a change of the use of a building—

(a)          to a mixed use for any purpose within Class A1 (shops) of the Schedule to the Use Classes Order and as a single flat, from a use for any purpose within Class A1 of that Schedule;

(b)        to a mixed use for any purpose within Class A2 (financial and professional services) of the Schedule to the Use Classes Order and as a single flat, from a use for any purpose within Class A2 of that Schedule;

(c)       where that building has a display window at ground floor level, to a mixed use for any purpose within Class A1 (shops) of the Schedule to the Use Classes Order and as a single flat, from a use for any purpose within Class A2 (financial and professional services) of that Schedule.

There are limiting conditions that state:

F.1    Conditions

Development permitted by Class F is subject to the following conditions—

(a)      some or all of the parts of the building used for any purposes within Class A1 or Class A2, as the case may be, of the Schedule to the Use Classes Order shall be situated on a floor below the part of the building used as a single flat;

(b)     where the development consists of a change of use of any building with a display window at ground floor level, the ground floor shall not be used in whole or in part as the single flat;

(c)      the single flat shall not be used otherwise than as a dwelling (whether or not as a sole or main residence)—

(i) by a single person or by people living together as a family, or

(ii) by not more than six residents living together as a single household (including a household where care is provided for residents).

F.2    Interpretation of Class F

For the purposes of Class F—

“care” means personal care for people in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder.

Note specifically the use of the term ‘single flat’. The space cannot be converted into multiple units of accommodation. The ground floor must remain in shop use and cannot form part of the flat. And for A2 uses where there is a display window at ground floor level you can also alter the use to A1 and a flat. But this condition just seems to belt and brace the existing provisions anyway.

Class G provides for the conversion back from a mixed flat and shop to a full shop use.

Class G.    Permitted development

Development consisting of a change of the use of a building—

(a)       to a use for any purpose within Class A1 (shops) of the Schedule  to the Use Classes Order from a mixed use for any purpose within Class A1 of that Schedule and as a single flat;

(b)    to a use for any purpose within Class A2 (financial and professional services) of the Schedule to the Use Classes Order from a mixed use for any purpose within Class A2 of that Schedule and as a single flat;

(c)     where that building has a display window at ground floor level, to a use for any purpose within Class A1 (shops) of the Schedule to the Use Classes Order from a mixed use for any purpose within Class A2 (financial and professional services) of that Schedule and as a single flat.

G.1    Development not permitted

Development is not permitted by Class G unless the part of the building used as a single flat was immediately prior to being so used used for any purpose within Class A1 or Class A2 of the Schedule to the Use Classes Order.

So the limitation in Class G is that the single flat had to have been used as part of the shop use immediately before the use as a flat, in order to allow for a reversion to shop use. If it has never been used as part of the shop use then the permitted development rights may not apply.

Other limitations

You should always check to ensure that any planning permission over the building has not withdrawn any (or all) permitted development rights by way of planning condition. Equally, check whether there are any Article 4 Directions imposed on the area that might limit permitted development rights accordingly. This is not uncommon in Conservation Areas. If you are a tenant, there may also be limitations imposed by your landlord.

However, assuming that there are no planning or other restrictions, such a change of use can be made without the need for planning permission accordingly.

Don't forget that this allows a change of use rather than physical development so if it is necessary to alter the building substantially or you need to put new windows and doors into the structure then planning permission and Building Regulation approval may be required. Internal works do not usually involve the need planning permission - unless they are structural in nature – but you may nevertheless need to consider Building Regulations (particularly with regard to escape in the event of a fire).

Finally, if you want absolute certainty you can apply for a Certificate of Lawfulness of Proposed Use or Development (the so called CLOPUD) to secure the local authority’s written confirmation that you may proceed without the need for planning permission.

Update:
There's always something else isn't there. Well, Eric Pickles has now confirmed the following:

The Department for Communities and Local Government (DCLG) have said that new permitted development rights are to come into force on 1 October 2012.

Current legislation only allows for one flat to be created above a shop without the need for a planning application, provided the space is not in a separate planning unit from the shop and that there is no change to the outside of the building.

The DCLG states that under the new permitted development rights two flats will be allowed to be created in office or storage space.

Eric Pickles said: "These are common sense planning reforms that will deliver more affordable homes in areas where there are good transport links while ensuring better use of existing developed land.

"Cutting this red tape should be a shot in the arm for the high street, increasing footfall and providing a boost to regeneration."

Any other planning questions you might have can be put through the e-service at www.ruralurbanplanning.co.uk