Planning issues in fracking

Hydraulic fracturing, known as fracking, is a technique used in the extraction of gas and oil from ‘shale’ rock formations by injecting water, sand and chemicals at high pressure.

Consents for fracking

Broadly, there are four stages of shale gas development: exploration, appraisal, development and production, and decommissioning. A variety of consents are needed for each stage, including:

  1. licensing consents from the government (see Practice Note: Fracking—regulatory issues)

  2. land use permission (see Practice Note: The planning regime for hydraulic fracturing (fracking) in England)

  3. environmental permits (see Practice Note: Fracking—environmental issues)

  4. other consents from a variety of other bodies including landowners

This subtopic explains the requirement for land use permission only.

Each of the stages of

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High Court gives guidance on the new duty to ‘seek to further the purpose of conserving and enhancing the natural beauty’ of AONB for planning authorities (CPRE Kent v SSHCLG)

Planning analysis: Section 85(A1) of the Countryside and Rights of Way Act 2000 (CRWA 2000) came into effect on 26 December 2023 following amendments to that Act made by section 245 of the Levelling-Up and Regeneration Act 2023 (LURA 2023). The provision requires relevant authorities to ‘seek to further the purpose of conserving and enhancing the natural beauty’ of Areas of Outstanding Natural Beauty (‘AONB’) when exercising functions affecting such land. This case concerned a challenge to the November 2024 decision of the Secretary of State for Housing, Communities and Local Government (‘the Secretary of State’) to grant planning permission for the construction of 165 dwellings and associated works in the High Weald AONB. The grounds of challenge were that the Secretary of State had breached the CRWA 2000, s 85(A1) duty (Ground 1) or alternatively, had given inadequate reasons for concluding that the duty had been complied with (Ground 2). The main issue for the High Court was whether the words ‘seek to further’ contained in the amended section 85(A1) duty had altered the substance of the duty so as to require a decision-maker to refuse planning permission for development if it is found that the proposal would cause harm to an AONB by failing to conserve or enhance its natural beauty. In dismissing the claim and upholding the Secretary of State’s decision, the judge provided guidance on the requirements of the CRWA 2000, s 85(A1) duty in the context of planning decisions affecting AONBs. Written by Max Millington, barrister at Cornerstone Barristers.

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