Planning application for exploratory fracking

John Wilkinson made this Freedom of Information request to Department for Levelling Up, Housing & Communities

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was partially successful.

Dear Department for Communities and Local Government,

What happens if a planning application is made for exploratory fracking :-
(a) at the edge of a host (mineral planning) authority's area,
(b) which has significant impact on a neighbouring/affected (mineral planning) authority,
(c) if the host authority is mindful to approve the application despite many objections,
(d) but the neighbouring/affected authority refuses it after receiving many objections?

Yours faithfully,

John Wilkinson

Dear Department for Communities and Local Government,

I note that you have not yet responded to my FOI Request on the 14th May 2017 concerning Planning Applications for exploratory fracking wells. Can you please tell me when you will respond?

Yours faithfully,

John Wilkinson

Tim Hayward, Department for Levelling Up, Housing & Communities

Dear Mr Wilkinson

 

Thank you for your email. Unfortunately we can find no record of a 14 May
2017 request concerning planning applications for exploratory fracking
wells. Can you let me know what the reference number of the request was?

 

 

Best wishes,

 

Tim Hayward

 

 

Tim Hayward | Knowledge & Information Access | Department for Communities
and Local Government

 

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Dear Tim Hayward,

The whatdotheyknow reference number for my FOI request on the 14th May 2017 was 649608, and it is publicly available on the web site.

Yours sincerely,

John Wilkinson

Tim Hayward, Department for Levelling Up, Housing & Communities

Dear Mr Wilkinson

I'm afraid the Department has no record of receiving your request in May. If you can confirm that the request below is correct, I'll log it on our system and someone will get back to you as soon as possible:

What happens if a planning application is made for exploratory fracking :-
(a) at the edge of a host (mineral planning) authority's area,
(b) which has significant impact on a neighbouring/affected (mineral planning) authority,
(c) if the host authority is mindful to approve the application despite many objections,
(d) but the neighbouring/affected authority refuses it after receiving many objections?

Tim Hayward | Knowledge & Information Access | Department for Communities and Local Government

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Dear Tim Hayward,

I confirm that FOI request I made in May, which is copied into your message dated 15th June 2017, is correct.

Yours sincerely,

John Wilkinson

Dear Tim Hayward,
When do you expect to be able to reply to my request (first made on the 14th May and repeated on the 15th June 2017)?

Yours sincerely,

John Wilkinson

Tim Hayward, Department for Levelling Up, Housing & Communities

Dear Mr Wilkinson

I understand that planning colleagues will be replying to your correspondence this week.

Best wishes,

Tim Hayward | Knowledge & Information Access | Department for Communities and Local Government

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Despatch Box,

1 Attachment

Dear Mr Wilkinson, 
 
Please see the attached.     Many apologies for not responding sooner. 
 
Yours sincerely, 
 
 
 
Roger Wand   
 
NOTE: Please do not edit the subject line when replying to this email.

Dear Mr. Wand,

Thank you for your response dated 24th July. I hope though you can clarify and expand on one aspect.

I was in fact thinking entirely of the scenario mentioned in your third paragraph i.e. a development proposal for exploratory fracking located close to the boundary of one (rural) local authority's area which would have significant implications for a neighbouring (urban) local authority. Not only could lateral wells be dug under residents' property in the neighbouring authority, but much of the traffic delivering to and dispersing from the fracking site might require use its road network.

You indicate that in this scenario the 'gifting' authority is 'capable' of taking account of concerns by the neighbouring authority and its residents. Frankly I would expect in these circumstances an edict requiring a partnered approach - particularly if there were significant differences in their development plans.

Yours sincerely,

John Wilkinson

Despatch Box,

1 Attachment

Dear Mr Wilkinson,
 
Please see the attached. 
 
Yours sincerely 
 
Roger Wand 
NOTE: Please do not edit the subject line when replying to this email.

Dear Mr. Wand,
I wonder if you are now able to respond to my Clarification FOI Question on the 24th July?

Yours sincerely,

John Wilkinson

Dear Despatch Box,

I wonder if you (specifically Mr. Wand) are yet in a position to respond to my request for clarification which was lodged on the 24th July 2017?

Yours sincerely,

John Wilkinson

Dear Department for Communities and Local Government,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Communities and Local Government's handling of my FOI request 'Planning application for exploratory fracking'.

My request was made through the 'What Do They Know' website on the 14th May 2017, and I had to prompt you for a response on the 14th June and again on the 16th July. I finally received a response on the 24th July and lodged a clarification question on the same day. I was promised a further response when the author returned from leave on the 17th August. I prompted you for the promised response on the 25th August and again on the 25th September, but have not had either an acknowledgement or an explanation for the delay.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/p...

Yours faithfully,

John Wilkinson

Despatch Box,

1 Attachment

Dear Mr Wilkinson,
 
Please see the attached.  I am very sorry it has taken us such a long time
to respond to your 24 July email. 
 
Yours sincerely
 
Roger Wand  
NOTE: Please do not edit the subject line when replying to this email.

Dear Mr. Wand,

Thank you for your (letter) response dated 7th November 2017. Although I have no wish to add to your workload, after following the link you provided I would ask you to confirm my understanding of the situation in a specific scenario.

Assuming a planning application is made to Lancashire County Council to site an exploratory fracking well pad on land at the edge of its boundary which involves lateral drilling under existing and potential properties and businesses in the neighbouring area of Sefton Council. Lancashire would take a decision on the planning application after consulting Sefton, but is not obliged by law to take account of Sefton's development plan.

Am I correct?

Yours sincerely,

John Wilkinson

Roger Wand, Department for Levelling Up, Housing & Communities

1 Attachment

Our reference : 3550308

 

Dear Mr Wilkinson,

 

Compliments of the season to you.  

 

Yet again I have to apologise for my tardiness in response, this time to
your email of 7 November.  I’m afraid its only between the Christmas and
New Year period that I have had the opportunity to do so.   

 

As you might have expected given our previous correspondence about this
cross-boundary proposals issue, the seemingly straightforward question you
pose in your 7 November email doesn’t lend itself to as straightforward a
response.   Having consulted with lawyers, our response (also capturing
what we’ve said before) can only be in general terms to the planning law
that guides the consideration of development proposals and not to how a
mineral planning authority, or authorities, might deal with a specific
proposal or appear to do so. 

 

Under section 38(6) of the Planning and Compulsory Purchase Act 2004 the
local planning authority (in the case of a shale planning proposal, this
would be a mineral planning authority – a county council (in 2-tier parts
of the country), a unitary authority, or a national park authority) has to
determine proposals in accordance with the development plan unless
material considerations indicate otherwise.    

 

In England outside London the development plan is the documents (taken as
a whole) which have been adopted or approved in relation to that area and
the neighbourhood development plans which have been made in relation to
that area (section 38(3) of the Planning and Compulsory Purchase Act
2004).

 

Where a planning application is a minerals one (which exploration for
shale would fall under), the development plan would be the mineral (and
waste) local plan or Minerals Core Strategy as applicable, and any
relevant policies (including any saved policies) in other local plans
prepared by district authorities, depending on which area(s) the proposals
fall within. There may also be relevant policies in a made neighbourhood
plan, although that’s less likely.   For example, whilst ‘strategic’
mineral policies would be set out in the county level mineral plan there
may be relevant detailed development control policies in the district
local plan or plans, which together constitute the development plan. This
reflects the hierarchy of local plans.

 

Under  section 101(1A) of the Local Government Act 1972 A local authority
may not under subsection (1)(b) above arrange for the discharge of any of
their functions by another local authority if, or to the extent that, that
function is also a function of the other local authority and is the
responsibility of the other authority's executive.

 

In practice its often county authorities which delegated county functions
under section 101 to district authorities which don’t otherwise exercise
functions in those areas e.g.  with regards highways, for example.

 

In any event, in a hypothetical scenario such as that posed in your
correspondence, the development plan(s) would still be the documents
(taken as a whole)……set out under section 38(3) of the 2004 Act. 

 

Since the development plan is specific to a particular area(s) rather than
a particular decision taker, that development plan(s) would, for decision
taking purposes, apply regardless of which authority made the decision.  

 

The decision taker of a planning application also has to consider any
material considerations and whether those indicate that the proposal
should be determined otherwise than in accordance with the development
plan. Whether something is a material consideration depends on whether its
relevant to land use planning. This may vary depending on the particular
proposal.

 

Where a proposal for minerals development might straddle the boundary of
two county authorities, two applications would need to be submitted – one
to each county authority. The same points as set out above would apply in
relation to  the development plan and any material considerations.

 

Yours sincerely,

 

 

Roger Wand

 

[1]https://governmenttechnology.blog.gov.uk... Roger Wand

Policy Advisor,  Planning -
Infrastructure Division

 

* Fry 3^nd Floor NE I  2 Marsham
Street, London SW1P 4DF

( 0303 444 1688 I8
[2][email address]

 

 

 

 

 

 

 

 

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Dear Roger Wand,

Thank you for your response dated 28th December 2017.

I can well understand the reluctance of your lawyers to admit that there is a 'lacuna' in the planning legislation in relation to Fracking proposals. It is evident however that the answer you have provided to my question is in effect that I am correct.

Yours sincerely,

John Wilkinson