Fracking at Ryedale–environmental groups seek to challenge consent

Fracking at Ryedale–environmental groups seek to challenge consent

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Tim Pugh, consultant in planning and environment at Berwin Leighton Paisner, examines in detail the background to the judicial review application to challenge North Yorkshire County Council’s decision to grant planning permission for fracking operations in the Ryedale District.

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What is the background to this story?

On 23 May 2016, North Yorkshire County Council decided to grant planning permission in its Ryedale District for hydraulic fracking operations at an existing onshore oil and gas field at Kirby Misperton. The applicant was Third Energy UK Gas Ltd.

The site is located above Bowland Shale geological formations—those highlighted by British Geological Survey as having a shale gas resource (gas in place—central estimate) of 1,329 trillion cubic feet.

The permission granted by North Yorkshire County Council has been challenged by Friends of the Earth and Frack Free Ryedale. A rolled up permission and substantive hearing has been set down for 22 and 23 November 2016. Coincidentally, the Chancellor’s Autumn Statement is scheduled to be on 23 November 2016 too.

What is the history of the site and it obtaining approval for fracking?

The Kirby Misperton site has a thirty-year history of onshore gas exploration and exploitation.
An exploratory well was drilled on the KM-A well-site in 1985 by Taylor Woodrow Exploration. Consent for the commercial production of gas from KM-A was granted in March 1993. Ten years after gas was first discovered, commercial production from Kirby Misperton and three other nearby gas fields began in 1995.

KM8, the subject of Third Energy’s application, is a well within an extension to the KM-A well-site granted planning permission, and consent to sink exploratory boreholes to a depth of 3,104 metres (10,184 ft) in January 2013.

In September 2015, North Yorkshire County Council granted planning permission for five groundwater monitoring boreholes on the KM-A well-site to undertake baseline monitoring of groundwater to characterise groundwater quality prior to the undertaking of any operation to hydraulically stimulate and test various geological formations through which KM8 has previously been drilled.

In the long term, the boreholes would also be used to monitor groundwater quality during and after the KM8 hydraulic fracturing operation.

In July 2015, Third Energy’s application to North Yorkshire County Council for planning permission (among other things) to hydraulically stimulate (frack) and test within the boreholes drilled under the 2013 permission and to exploit the well if workable reserves are found was registered.

At approximately the same time as making its planning application to North Yorkshire County Council, Third Energy sought relevant environmental permits from the Environment Agency. In April 2016, the agency granted permits in relation to:

  • a mineral waste operation, including a mining waste facility
  • groundwater activity
  • radioactive substances activity

In their May 2016 Committee Reports, North Yorkshire planning officers summarised what they were considering as a:

‘Planning application to hydraulically stimulate and test the various geological formations previously identified during the 2013 KM8 drilling operation, followed by the production of gas from one or more of these formations into the existing production facilities, followed by well-site restoration. Plant and machinery to be used includes a workover rig (maximum height 37m) hydraulic fracture equipment, coil tubing unit, wireline unit, well testing equipment, high pressure flowline, temporary flowline pipe supports, permanent high pressure flowline and permanent pipe supports on land at KMA well-site, Alma Farm, Kirby Misperton, North Yorkshire.’

The application proposed development over five phases:

  • phase one—pre-stimulation workover
  • phase two—hydraulic fracture stimulation/well test
  • phase three—production test (flow-testing)
  • phase four—production
  • phase five—site restoration

The May 2016 planning officers’ reports recommended approval and ran to 270 pages, excluding appendices. The matters considered included full environmental assessments, Human Rights Act 1998 implications, Equalities Act 2006 implications, and a full range of planning policy and other material considerations—along with the interface between planning protections and those to be delivered under environmental permits. The reports recorded that there had been more than 4,000 individual representations, of which 32 were in support, along with petitions with almost 3,000 signatories.

Frack Free Ryedale and Friends of the Earth were prominent and persistent objectors to the application.

Planning permission was granted on 23 May 2016 for development within a ten year period to 23 May 2026, with provisions for restoration by the earlier of:

  • that date
  • within six months of the soonest of cessation of gas production, cessation of electricity generation at Knapton power station or abandonment of the site

On 7 July 2016, an application for judicial review was lodged on behalf of Frack Free Ryedale and Friends of the Earth.

What are the main grounds for challenge in the judicial review?

The main grounds for challenge are:

  • North Yorkshire County Council as planning authority failed properly to assess the climate change impact of fracking through its failure to consider the environmental impact of burning the shale extracted to create electricity at Knapton power station
  • North Yorkshire County Council failed to secure long-term financial protection against environmental damage of the area

What might the implications be for other potential fracking sites and fracking projects generally?

Various conclusions can be drawn from the experience at Kirby Misperton so far:

  • in the short term, and in response to national planning policies and the national planning regime having been made more favourable to fracking, judicial review is a weapon of choice for campaigners—this was so in R (on the application of Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin), [2014] All ER (D) 67 (Dec) and remains the case at Roseacre Wood, pending the outcome of current planning appeals
  • a wide range of legal arguments are being tested by objectors as opportunities arise—as they were with varying degrees of success, during the early days of environmental impact assessment—in the Balcombe case, the judgment was firm in dismissing the challenge
  • legal challenges create uncertainty and the objectors’ apparent strategy is familiar—object vociferously, and if it is not possible to defeat the proposal, delay it as long as possible, make its implementation as expensive as possible and hope it goes away
  • the grounds of challenge demonstrate a willingness of opponents to try to use difficult-to-assess macro-environmental arguments such as implications of individual projects for global climate change
  • attention will be focused not only on environmental protections while sites are operational, but also long-term well integrity, aftercare and certainty that financial and enforcement guarantees are in place
  • opponents of fracking are showing themselves dogmatically determined to stand against it by any means available, even in the case of existing oil and gas fields where extraction has been a fact of life for many years
  • close attention by well-resourced (no pun intended) and well-informed environmental lobby organisations and protest groups calls for careful and complete preparation and transparent, thorough, robust and objective assessment by applicants and local authorities alike—it also means that robust financial mechanisms should be put in place to provide long-term certainty

For now, the above factors combine to make the consenting process for onshore oil and gas using hydraulic fracking techniques protracted, expensive and resource-intensive, not only for applicants but also for planning authorities. Over time, as legal and planning ground rules are defined more clearly, they will become much less so.

Interviewed by Susan Ghaiwal. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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