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Local Government Association voices concerns on the inclusion of fracking projects in the Nationally Significant Infrastructure Project Regime

21 November 2018

This article is taken from November's public matters newsletter. Click here to view more articles from this issue.

The Local Government Association (LGA) recently published its objection to the inclusion of major shale gas production projects in to the Nationally Significant Infrastructure Projects (NSIP) Regime in response to the BEIS consultation. But why are the LGA so against the idea? This article explores more about the NSIP regime and why the LGA are against the inclusion of shale gas projects within it.

What is the NSIP Regime?

Established by the Planning Act 2008, the NSIP regime is broken down into five distinct categories covering different types of projects, namely:

  • energy
  • transport

  • water

  • waste water

  • waste.

Projects which fall under this scheme are generally large scale projects and can cover things as diverse as reservoirs to electricity generating projects.

What is particularly important to note in relation to the regime is the way planning is dealt with. Since April 2012, the Planning Inspectorate (PI) has been the agency responsible for operating the planning process for NSIPs under the Localism Act 2011, meaning that the decision-making in relation to planning for these large scale projects does not fall to local authorities.

What would be the impact of including major shale production projects in the NSIP regime?

The obvious consequence of the inclusion of these types of projects within the NSIP regime is the removal of planning and development consents away from local authorities and into the centralised planning regime for NSIPs established under the 2008 Act.

The argument from central government is that such a move would bring these types of projects in line with other nationally significant energy projects such as the development of power stations or wind farms. It should be noted that the move would not result in all shale gas production projects being classed as NSIPs, it is likely that there will be defined thresholds in relation to the size of such projects which will need to be met before they fall under the centralised regime.

Whilst the change would result in the decision as to whether such a project goes ahead being removed from local authorities, local authorities still have a role in the consent process. For example, during the ‘pre-application stage’ the PI will liaise with relevant local authorities about the applicant’s Environmental Impact Assessment, and if the project falls within a local authority’s boundary then the applicant will also have to consult with the local authority about the contents of the Developer’s Statement of Community Consultation (SOCC). Additionally, in the ‘pre-examination’ stage if you are a local authority covering the area where the project in question will be located, you will automatically be an interested party in this phase and can submit a relevant representation to the PI. However, the role of local authorities in the process can be summarised as one of consultation at best, with no direct say in the final decision.

The LGA’s objections

The LGA have raised numerous objections to the move in their response and these have been summarised below:

  • It will bypass the locally democratic planning system. Currently any organisation wishing to undertake a shale gas development must submit any planning applications to local mineral planning authorities under the Town and Country Planning Act 1990. The LGA argues that in relation to on shore oil and gas developments it is important that democratically elected councils and their communities are at the centre of any decisions regarding their local areas. Through a local planning system this is able to occur, allowing communities a vital say in applications for controversial activities such as fracking in their area.
  • The local system of planning applications is more efficient. The LGA argues that the vast majority of relevant planning decisions were made within the 13 weeks or 16 weeks (where an Environmental Impact Assessment is necessary) whereas the Development Consent Order Process (which is the process under NSIP) normally lasts approximately 12-15 months. There are also a number of pre-application consultation requirements not factored in to this 12-15 month period, meaning the actual length of time for approval could actually be several years.

What next?

The shale gas industry and in particular fracking remains a hot public topic, especially in recent months where legal challenges have failed to derail the Cuadrilla fracking operation in Lancashire, the first time fracking has been allowed in the UK since 2011.

This consultation, and a subsequent inclusion of such projects in the NSIP regime, would result in the decisions as to whether to approve these projects, which fundamentally alter the landscape of local communities, being removed from local authorities and placed in the hands of central government, potentially limiting the ability of local people to have a say on whether such projects go ahead. The consultation closed on 25 October 2018 and it remains unclear as to whether BEIS will reconsider the move towards centralisation.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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