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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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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.
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:
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:
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:
On 7 July 2016, an application for judicial review was lodged on behalf of Frack Free Ryedale and Friends of the Earth.
The main grounds for challenge are:
Various conclusions can be drawn from the experience at Kirby Misperton so far:
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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