Cover Sheet

EPP9

APPEALBYISLANDGASLTD,PORTSIDEELLESMEREPORT

APPEALREFERENCEAPP/A0665/W/18/3207952

PLANNING

Proof of Evidence

By Jackie Copley MRTPI MA BA(Hons) PgCert

Cover image

Table of Contents

1. EXPERIENCE………………………………………………………………………………………………………….. 3
2. THE APPLICATION………………………………………………………………………………………………….. 4

Grounds for Chester West and Chester Council refusal………………………………………. 5

Site location…………………………………………………………………………………………………………….. 5

Site recent history…………………………………………………………………………………………………….. 6

3. DEVELOPMENT PLAN……………………………………………………………………………………………… 7

Development Plan: Cheshire West and Chester Local Plan (Part One)…………………………………… 8

The Local Plan (Part One) monitoring framework………………………………………………17

The Oil and Gas Exploration, Production and Distribution SPD……………………………………18

Development Plan: Cheshire West and Chester Local Plan (Part Two)…………..19

Conclusion……………………………………………………………………………………………………………… 21

4. OTHER MATERIAL CONSIDERATIONS………………………………………………………………………… 21

The National Planning Policy Framework………………………………………………………………..21

National Planning Practice Guidance……………………………………………………………………….25

Shale Gas and Oil Policy Statement by DECC and DCLG (13 August 2015)…………………………….. 25

Written Ministerial Statement: Energy Policy (17 May 2018)…………………………………………….. 25

Written Ministerial Statement : Shale Gas and Oil Policy (16 September 2015)……………………… 26

A Green Future: Our 25 Year Plan to Improve the Environment (2018)………………………………… 26

Climate Change Act 2008…………………………………………………………………………………………… 27

Committee on Climate Change…………………………………………………………………………………… 28

The Paris Climate Agreement 2016……………………………………………………………………………… 28

The Localism Act 2011………………………………………………………………………………………………. 28

Conclusion……………………………………………………………………………………………………………… 29

5. PLANNING BALANCE……………………………………………………………………………………………… 29

1. Exeperience

1.1 I have a Master’s degree in Town and Regional Planning from Leeds Metropolitan University (thesis focused on place marketing), a Bachelor of Arts in Town and Country Planning from the University of Manchester, and a Postgraduate Certificate in Urban Design from the University of Salford.

1.2 I have worked in planning for more than 25 years, 20 of those as a chartered member of the Royal Town Planning Institute. I have professional planning experience in the public, private and not for profit sectors, working on behalf of a range of interests, such as regeneration partnerships, English Partnerships, and commercial clients. I was involved in planning and economic development projects in Hulme, Manchester, Salford Quays, Ordsall, Seedley and Langworthy in Salford.

1.3 In private consultancy working for Atkins and Roger Tym and Partners (now Peter Brett) I managed a variety of research projects, including planning for transport, retail, housing, economic development, brownfield regeneration and preparation of brownfield strategies and action plans, evaluation and monitoring.

1.4 For the past 5 years I have responded to a number of planning applications and provided evidence at planning appeals and inquiries for the Lancashire Branch of the Campaign to Protect Rural England. CPRE Lancashire works to protect and enhance countryside as new development is planned and advocates the reuse of brownfield land in existing settlements in advance of development being focused needlessly in rural areas. During this time I have advised on policy drafting for shale gas and oil developments and have responded to applications and appeals for shale gas development by Cuadrilla at sites on Preston New Road, and at Roseacre Wood in Fylde.

1.5 I am aware that I have a professional duty to assist the inquiry, in accordance with the guidelines and standards of the RTPI. I confirm that the evidence I produce here is true to the best of my knowledge and belief, representing my honestly held professional view.

2. The Application

2.1 The application is for a shale gas exploration development which involves:{consent} to mobilise well test equipment, including a workover rig and associated equipment, to the existing wellsite to perform a workover drill stem test and extended well test of the hydrocarbons encountered during the drilling of the EP1 well, followed by well suspension.

2.2 There is concern that the Appellant has confused the intention of the application. The application documents do not describe the extraction technique. They state that the technique will not be hydraulic fracturing (CD 2.4pg 10), but do not state what the technique will be. The term “acid squeeze” does not appear in any of the planning application documents. The Planning Statement mentions use of acid once (CD 2.4section 6.2.4 pg 22). The Statement of Case also mentions use of acid only once (CD 4.1 pg 5 para 3.2.4). Both documents use a variation of the same description: to re-establish natural flow, a dilute acid, “most commonly hydrochloric acid (HCI) at 15% concentration with water”will be “applied to the near wellbore formation through the perforations.” Only in correspondence with the Rule 6 party did the Appellant clarify that the method of extraction involves “acid washing or, if required, an acid squeeze (applying the definitions of those terms by the Environment Agency).” (EP 23, letter of 22 November 2018). Neither of those terms actually appears in the application documents.

2.3 The Environment Agency’s definition of “matrix acidisation” and “acid squeeze” are synonymous, see the Environment Agency’s document: Use of acid at oil and gas exploration and production sites, 2018 (EP20). It states: “The term acidisation can include acid washes, matrix acidisation and fracture acidisation. Other terms that are frequently used to cover matrix acidisation and fracture acidisation include “acid squeezes” and “stimulation” respectively.”  And, from the same document: “An acid squeeze results in the acid being squeezed in to the rock formation and dissolving the rock. It may also result in opening up new fractures, although very small and close to the well. This may enhance or create new flow paths to enable the well to be more productive. Exactly the same processes are at work as in acid washing, matrix acidisation and fracture acidisation, but just at a very local scale to the well due to the poor permeability of the geological formation.” Finally, the same document states: “The Environment Agency does consider matrix acidisation to be a form of stimulation.” 

2.4 Given the description of the proposed development and the lack of specificity of the application documents, if approved, the developer in effect could progress a matrix acidisation. Therefore the potential land use consequence of this must be fully considered when deciding whether or not to approve, with a precautionary principle applied to deal with potential adverse consequences, such as blow outs and associated threat to life of site operatives and neighbouring properties.

Grounds for Chester West and Chester Council refusal

2.5 The Council refused the application for the following reasons: “In the opinion of the Local Planning Authority the proposed development to appraise for shale gas in this location will be contrary to the provisions of policy STRAT1 of the Cheshire West and Chester Local Plan (Part One), which states that inter alia – Proposals that are in accordance with relevant policies in the Plan and support the following sustainable development principles will be approved without delay, unless material considerations indicate otherwise. The proposal fails to mitigate and adapt to the effects of climate change, ensuring developmentmakes the best use of opportunities for renewable energy use and generation.”

2.6 Having considered the application details and supporting documentation I find that the reason for refusal by the Council is valid. There are planning reasons for refusal in addition to Policy STRAT 1 –sustainable development due to departure from other policies in the Local Plan and other material considerations. These reasons are set out below.

Site location

2.7 The 0.96 hectare site at Portside North occupies a location near to the waterfront at 1.7 kilometres distance from the centre of Ellesmere Port. It is located in close proximity to sensitive receptors as highlighted on the FFEPU map (EP14).

2.8 Of significance to the site and future land use is the location to the north at only 250 metres away of the Manchester Ship Canal, and beyond this at less than 270 metres is Priority Habitat Inventory Coastal Saltmarsh (England). The site is also at 300 metres from Priority Habitat Inventory Mudflats (England) (see MAGIC extract below), and the internationally European protected designations of the Mersey special protection area (SPA), RAMSAR wetland, and nationally protected site of special scientific interest (SSSI). These designations were not identified in Section 14 Biodiversity, Geological and Archaeological Conservation on the application form. The Council has a statutory duty to protect these designated habitats as new development is planned.

2.9 Other nearby land uses include industrial units accommodating businesses and employees at less than 100 metres, the M53 motorway linking Birkenhead with the rest of the country at 150 metres, and residential development has moved from 600m to 320m from the site (380m from the well). Of note, is that in the future other mixed use allocations, including residential dwellings, are planned in the Development Plan Policy STRAT 4 at roughly half that distance.

2.10 Sensitive receptors in the wider area include the Vauxhall Motors site and the Stanlow Oil Refinery at less than 2 kilometres, and a uranium enrichment /nuclear submarine reactor decommissioning facility which has seismicity as part of its nuclear licence within 5 kilometres. Other site issues are captured in Mr Watson’s proof of evidence.

Site recent history

2.11 The site is currently used by I-Gas for an existing coal-bed methane exploration and production development approved in 2010 (09/02169/MIN) and the planning documents specified a well of dimensions: 900m vertically and 500m horizontally.

2.12 In 2014 the appellant drilled the well and suspended operations for reasons only known to itself.

2.13 In July 2017, the appellant applied for planning permission to “Flow Test” the well. It became apparent that the well dimensions are in fact 1,949m vertically to extend into the shale bed. The horizontal drilling of the well is not known but none is understood to have taken place. In doing so the appellant breached the original planning permission by over a kilometre (no small margin) in terms of intended development, and there would inevitably be associated impacts from processes, additional vehicle movements, impact on local area, and impact on the local environment. It is understood that the council has taken no action on this breach of planning permission.

3. Development Plan

3.1 It is important to recognise that the planning context changed since 2009 with the adoption of the Cheshire West and Chester Local Plan (Part One) on 29 January 2015.

3.2 The Council is entitled to refuse applications that are contrary to the Development Plan in carrying out its planning function as set out in Section 38(6) of the Planning and Compulsory Purchase Act 2004, which gives primacy in decision taking to the Development Plan. The adopted Development Plan currently comprises:

  • Cheshire West and Chester Local Plan (Part One) Strategic policies (adopted 29 January 2015) (CD 5.1);
  • Saved policies of the Ellesmere Port and Neston Borough Local Plan (adopted 15 January 2002) (CD 5.2); and
  • Saved policies of the Cheshire Replacement Minerals Local Plan (adopted 1999)(CD 5.3).

3.3 The Cheshire West and Chester Local Plan (Part One), adopted 29 January 2015, was examined and found sound, based on the National Planning Policy Framework, 2012. The relevant policies to the Appeal remain the same in the revised NPPF, 2018 version. Full weight should be applied to the policies of the Local Plan (Part One).

3.4 The Cheshire West and Chester Local Plan (Part Two) Land Allocations and Detailed Policies Submission Version (March 2018) (5.4), also contains relevant policies. This is not yet adopted, but in September 2018 was examined and is subject to some amendment. Due to nearing adoption the policies can be afforded limited weight.

3.5 The Oil and Gas Exploration, Production and Distribution Supplementary Planning Document (SPD), May 2017 (5.5) and the Carbon Management Plan – Phase 2 2016-2020 (EP 24) are also considered.

Development Plan: Cheshire West and Chester Local Plan (Part One)

3.6 The policies of each part of the Development Plan considered most relevant to the determination of this Appeal are:

  • Policy STRAT 1 – Sustainable Development;
  • Policy STRAT 4 – Ellesmere Port;
  • Policy SOC5 – Health and Well-being;
  • Policy ENV1 – Flood risk and water management;
  • Policy ENV4 -Biodiversity and geodiversity;
  • Policy ENV7 – Alternative Energy Supplies; and,
  • Policy ENV9 – Mineral Supply and Safeguarding.

Policy STRAT 1 – Sustainable development

3.7 Policy STRAT 1 sets out the Council’s policy ambition for enabling sustainable development that improves and meets the economic, social and environmental objectives of the borough in line with the presumption in favour of sustainable development. The Council refused the application on the grounds the proposal was contrary to this policy as it failed to mitigate and adapt to the effects of climate change, ensuring development makes the best use of opportunities for renewable energy use and generation. However, the Council could also have refused the development for departing from other aspects of STRAT1 such as:

  • Being contrary to the policy to provide for mixed-use developments which seek to provide access to homes, employment, retail, leisure, sport and other facilities, promoting healthy and inclusive communities whilst reducing the need to travel;
  • Not protecting or improving the natural environment or restoring degraded and despoiled land, or seeking opportunities for habitat creation;
  • Not encouraging or prioritising the use and redevelopment of previously developed land and buildings in sustainable locations that are not of high environmental value;
  • Not supporting regeneration in a most deprived areas of the borough and ensure those reliant on non-car modes of transport can access jobs and services; and/or
  • Not ensuring the prudent use of our natural finite resources or promoting the re-use, recovery and recycling of materials.

3.8 An important element of Policy STRAT 1 is the Council attempting to encourage developers to harness renewable energy use and generation, in line with the Government’s Climate Change Act, 2008, Paris Agreement, the IPCC Report and CCC Report (see material considerations below). The proposed development would detract from facilitating renewable energy use and generation in so far as there is an economic opportunity cost of investment in a fossil fuel, which the Government has committed to phase out in the medium to long-term.

3.9 The proposed development would not contribute to the regeneration ambitions for mixed-use developments that are inclusive and promote healthy communities and reduce the need to travel. Nor is the development an appropriate land use that would be compatible with a high quality waterfront mixed use development. Substantial weight should be attributed to the fact that the development will not support the Council’s regeneration ambitions, or support a healthy community and inclusive mixed use development at this location.

3.10 The site is previously developed land, and the use of it is encouraged. But the proposed use is not appropriate for the site and wider area, both because of the proximity of residences and businesses (see below) and because the Council’s strategic policy as set out in STRAT 4 is to reinvigorate the deprived area for mixed use including residential development to capitalise on the waterfront location. Substantial weight should be attributed to the Council’s stated policy for regeneration of Ellesmere Port in the future. The Council ought to be able to refuse land uses that would conflict with ambitions to turn around the fortunes of this depressed area. The Council’s plans for improvement should be supported and not detracted from by the proposed development.

3.11 The Council Policy STRAT 1 aims to support regeneration in the most deprived areas of the borough and ensure those reliant on non-car modes of transport can access jobs and services, and the proposed development would not make the place more amenable to travelling by cycle or on foot due to the increased level of HGV traffic, at peak times 20 truck movements per day.

3.12 The Council has a responsibility to ensure the prudent use of our finite natural resources whilst promoting the re-use, recovery and recycling of materials. The development will permanently alter the geology and increase the atmospheric pollution, which is known to be harmful to climate change. The detrimental long term impacts on Cheshire’s natural resources should be fully considered.

3.13 In my view full weight should be given to STRAT 1, as it is the reason for refusal given by the elected councillors for the Borough Council. It is an up-to-date policy based on national guidance and forms a main basis of the Cheshire West and Chester Local Plan 2015 forming the current Development Plan for the appeal site area. From this analysis, it can also be seen that the proposed development runs counter to most of the criteria set out in STRAT 1.

Policy STRAT 4 – Ellesmere Port

3.14 After Chester, Ellesmere Port is the second place in Cheshire West and Chester Local Plan (Part One) to have a dedicated strategic policy in the Local Plan as set out in STRAT 4- Ellesmere Port. The other three places that have their own strategic policies are STRAT 5 – Northwich, STRAT 6 – Winsford, STRAT 7 – Middlewich.

3.15 The site is located within the area covered by STRAT4, which states: “Development in Ellesmere Port which is identified to have the potential to deliver substantial economic growth through the availability of significant sites for industrial, manufacturing and distribution purposes. Further housing is planned to complement the town’s role as a key employment location.” It is notable that the officer’s report had no mention of STRAT 4 – Ellesmere Port and it is generally relevant to the application. The proposed development would harm the Policy STRAT 4 purpose.

3.16 This site was historically in an area of industrial/ dockland uses, but the Council now has aspirations to regenerate the area that fronts the water body of Manchester Ship Canal, for at least 4,800 new dwellings and employment in a mixed use development to upgrade the Waterfront area. There are places of interest nearby, these include the National Boat Museum, the Shropshire Union Canal Docks, and the Manchester Ship Canal Railway borders the site to the North. Typical of brownfield land, the site’s current condition is low in terms of environmental quality and is not particularly visually attractive, but like other successful waterfront regeneration areas, including Liverpool Docks, and Salford Quays, the wider area has great potential. This potential is likely to be harmed if the shale gas development were to occur, and as a result reduce the area’s development land viability.

3.17 The Council will maintain a portfolio of employment land and premises available within Ellesmere Port and the surrounding area, to meet a range of sizes and types of business needs to 2030 and contribute to the overall employment land requirement.

3.18 Key sites with considerable potential to achieve future economic growth are identified at Stanlow, Hooton, Thornton and Ince to facilitate town centre regeneration.

3.19 Par 5.44 sets out that there is an existing Air Quality Management Area on the A5032 Whitby Road/Station Road in Ellesmere Port. Increased transportation as a result of new development could exacerbate vehicular emissions in this area. New development should consider air quality and further industrial development, which will be subject to strict controls to ensure that air quality is not a danger to public health under other legislation.

3.20 The thrust of the Council’s Local Plan STRAT 4 Policy is to develop the town and its urban area with a range of houses, and to develop areas such as New Bridge Road, Stanlow and Ince Park as employment centres. A shale gas development at the site could hamper future regeneration plans, as issues such as noise levels, heavy traffic, and associated air pollution could detract from the residential sites being brought forward due to reduced residential amenity. The future land use with a capped well would impede future land use potential for employment and residential uses.  Long term monitoring of the well for methane and radon emissions would need to be considered and again this could thwart regeneration ambitions. This factor should be attributed due weight.

Policy SOC 5 Health and well-being

3.21 In order to meet the health and well-being needs of its residents the Council sets out in Policy SOC 5 Health and Well-being what it will do regarding proposals. “Developments that give rise to significant adverse impacts on health and quality of life (e.g soil, noise, water, air or light pollution, and land instability, etc) including residential amenity will not be allowed.”

3.22 The proposed development would generate noise, particularly at night time, and operations would be heard at adjacent sites. Noise emitted from the development will increase the noise levels to 51db at all times of day, significantly exceeding the World Health Organisations recommended limits of 40db.

3.23 The officer report refers to the opinion of the Council’s Environmental Protection Officer who considers the impacts of the development will be acceptable subject to appropriate conditions and given the duration of the operation proposed. However, Policy STRAT 4 includes new residential dwellings planned at 320 metres from the site (380 from the well), in accordance with the regeneration aspirations for Ellesmere Port, so there is concern that the high levels of noise, particularly during stages requiring 24 hour operation, would have the potential to cause severe stress symptoms in people living in proximity. This should be attributed very significant weight.

3.24 Air quality was cited by many objectors as an issue of concern and the development needs to be considered against Policy SO5. Ellesmere Port is assessed an area of “Multiple Deprivation” using socio-economic indicators, showing poor levels of health experienced by local residents. It is also an “Air Quality Management Area” (AQMA) with high pollution levels.

3.25 The officer’s report identifies that the principle source of emissions arising from the development is the use of flares during the Drill Stem Test and Extended Well Test. It is understood that once the strata is fractured and chemically treated, the well will be flow tested to find the volume of gas available, by burning the gas in a “flare stack”. This involves maximising the gas flow to determine how much gas comes out, and how long it comes out for. The flared gas will contain unburnt methane (initially 35%), Volatile Organic Compounds (VOC’s) including the hazardous BTEX range of chemicals (Benzene, Toluene, Ethyl-Benzene, and Xylene), together with oxides of nitrogen, particulates, and trace radioactive gas (Radon is prevalent in this strata). Methane is a greenhouse gas. It would greatly assist the land use decision concerning Policy SO5 if the appellant specified what processes are involved, the chemicals or quantities used (it says they will use an acid like hydrochloric acid, but it is not specific), and if it specified the waste or volumes produced.

3.26 The flaring operation is proposed to take place close to ground level (the flare stack at 8 metres height) and will be potentially hazardous to the immediate environment. The total duration of the flow testing is planned to be 74 days, after which the well will be suspended pending a decision to move into full production. The impact on air quality from flaring 1,166 tonnes of untreated gas close to ground level may adversely impact the health of the local residents. As Prof Watterson shows in his evidence, local residents are particularly susceptible to such air quality impacts, as they are identified as high on the Index of Multiple Deprivation. The public health impact of this shale gas development must be understood, specifically regarding any harmful impact to the AQMA, and increase in noise levels in exceedance of accepted limits due to the harm to health and well-being.

Policy ENV 1 – Flood risk and water management

3.27 The Policy ENV 1 seeks to reduce flood risk, promote water efficiency measures, and protect and enhance water quality. Concerns relating to the application and ENV1 are the focus of Mr Grayson’s evidence, and are also relevant to the evidence of Prof Smythe. The site is in Flood Zone 1 and there is therefore no requirement for a flood risk assessment.

3.28 In the officer’s report it is shown that local people raised concerns over the hydrology and groundwater supply of the area. It was noted that the Sherwood Sandstone Aquifer, which is a source of public water supply, is located at a 500m below the site. The geology evidence provided by Mr Grayson and Prof Smythe has raised concern about the potential for the Sandstone Aquifer to be susceptible to contamination from toxic chemicals being injected into strata below and the gas liberated by the planned activity.

3.29 The local geology is thought to be faulted, and therefore no effective seal exists between the Sherwood Aquifer and the target formation that will be injected, potentially by matrix acidisation or acid squeeze. The probability of well failure over time and potential for pollution is also believed to be a significant risk. Therefore, it must be demonstrated that the groundwater source will not be subjected to contamination from the development, as this is an important public health issue. This planning issue must be afforded significant weight.

Policy ENV 4 – Biodiversity and geodiversity

3.30 Local Plan Policy ENV 4 aims to safeguard and enhance biodiversity and geodiversity through the identification and protection of sites and/or features of international, national and local importance. It sets out that sites will be protected from loss or damage taking account of:

  • The hierarchy of designations of international, national and local importance
  • The irreplaceability of habitats, sites and/or features and contribution to the borough’s ecological network of sites and features
  • Impact on priority habitats and protected/priority species

3.31 Development should not result in any net loss of natural assets, and should seek to provide net gains. Where there is unavoidable loss or damage to habitats, sites or features because of exceptional overriding circumstances, mitigation and compensation will be required to ensure there is no net loss of environmental value.

1.png

Extract:from MAGIC mapping database held by Natural England. The blue line that extends between two green flags located on the site at the nearest point to the Priority Habitat measures 268.2 metres the green shading is Coastal Saltmarsh and the brown shading is Mudflats.

3.32 The site is 270m from the Priority Habitats at Mersey Estuary SPA, RAMSAR and SSSI, which is regarded as one of the most important overwintering wildfowl sites in the UK of international importance. (See extract from Magic).

3.33 The officer report states Natural England considers “no significant effect”, yet an Environmental Impact Assessment has not been undertaken to fully assess the negative impacts that could arise. It is difficult to know how the Council could approve the development in the absence of such important information. The Council is legally bound to protect these important nature designations, as it is understood that bird numbers on this area are in long term decline. The Council’s screening opinion of 21 July 2017 concluded that: “The development has the potential to have some impact on protected species if noise impacts are not sufficiently controlled however given the scale and ability to control these impacts by condition the impact would not be significant. It is not considered that the development would lead to an increased contamination subject to appropriate controls.”In light of the People Over Windcase, which will be the subject of legal submissions, I strongly recommend a that an appropriate assessment be carried out.

Policy ENV7 – Alternative energy supplies

3.34The Local Plan Policy ENV 7 seeks to support renewable and low carbon energy proposals where there are no unacceptable impacts.

3.35 Given that this application will flare 1,166 tonnes of untreated hydrocarbons, initially with very low efficiency allowing 35% of the gas to escape unburnt (mainly methane) it is not a “low carbon” development.

3.36 The proposed development would detract from facilitating renewable energy use and generation in so far as there is an economic opportunity cost of investment in a fossil fuel, which the Government has committed to phase out in the medium to long-term. The jobs created in association with shale require skills likely to be imported into the area, for a short term, compared to jobs in the renewable sector that would train and then employ local people, for a longer period. The future land use with a capped well would impede future land use potential for employment uses. Long term monitoring of the well for methane and radon emissions would need to be considered and again this could thwart regeneration ambitions. This factor should be attributed due weight.

3.37 The Council states “Proposals to exploit the borough’s alternative hydrocarbon resources will be supported in accordance with the above criteria and all other policies within the Local Plan.”Given that the proposal does not comply with STRAT 1, STRAT 4, SOC5, and other environmental policies as set out above this particular hydrocarbon development should not be supported.

3.38 The Local Plan Policy ENV7 should be given due weight.

 Policy ENV9 -Minerals supply and safeguarding

3.39 Policy ENV9 should be considered in so far as the compliance of the proposal with “ensuring the sustainable and prudent use of all natural mineral resources, including salt and brine, whilst having regard to the need to contribute to the provision of nationally significant gas storage capacity.” As stated elsewhere in this document the development cannot be considered sustainable and therefore should not be allowed. Full weight should be attributed to Policy ENV9.

The Local Plan (Part One) monitoring framework

3.40 The Council has a Local Plan (Part One) monitoring framework that sets indicators out in a monitoring framework, with additional contextual indicators and significant effects indicators to be included within each Annual Monitoring Report. Contextual indicators measure changes in the wider social, environmental and economic circumstances of the borough. ‘Significant effects indicators’ measure the likely significant effects of the plan (positive and negative) as identified through the Sustainability Appraisal.

3.41 Policy STRAT 1 Sustainable development is an overarching policy which provides the basis for development in the borough. This policy will be monitored through the implementation and monitoring of other policies within the Plan and other contextual indicators included in each Annual Monitoring Report.

3.42 For STRAT 4 it has an indicator: the number of net dwelling completions in Ellesmere Port spatial area 2010-2030 and a target of 4,800 with a baseline of 710 net dwelling completions 2010 – 2014.

3.43 For SOC 5 – Health and Well-being the indicator is to ensure that relevant planning applications are determined in accordance with policy with a target of 100 per cent.

3.44 I consider it relevant to understand that the Council not only has an adopted Local Plan/Development Plan, but a performance monitoring framework to ensure it delivers development decisions in accordance with it. Approving the proposed development would not only be contrary to policy, but it would also impact negatively on the key indicators that the Council has developed for monitoring its performance.

The Oil and Gas Exploration, Production and Distribution SPD

3.45 This is a supplementary planning document (CD5.5) relating to onshore oil and gas (hydrocarbons) development and it covers both conventional and unconventional oil and gas production. The SPD is intended to supplement the policies in the Local Plan (Part One) Strategic Policies and provide advice for applicants, and decision makers. It stresses that applications, when submitted, are accompanied by sufficient information to allow full consideration of any environmental impacts and proposed mitigation measures.

3.46 Applications for planning permission will be assessed against the effects of the exploration activity, including cumulative impacts with other structures and developments, rather than on the merits of any possible future proposals for commercial exploitation. Consideration will not include any hypothetical future proposal for development of the oil or gas resource.

3.47 Of particular note, the SPD states that “Operators should provide sufficient information to enable a full assessment to be made of the baseline conditions, where required, and likely effects of the proposed development. Information should be provided on how these impacts are addressed, either through the design of the scheme, or through mitigation measures”.The refusal decision is linked to the applicant not providing enough information on mitigation for Local Plan Policy STRAT 1 – Sustainable development. The Oil and Gas Exploration, Production and Distribution SPD should be given due weight.

3.48 Paragraph 5.28 of the SPD states “Oil and gas development should not cause an unacceptable cumulative impact arising from the interactions between minerals and waste developments, and between mineral, waste and other forms of development in the locality. These cumulative impacts may relate to many of the impacts identified above such as noise, visual impact, water resources etc. The potential cumulative impacts of oil and gas developments (including both simultaneous and sequential development) and the way they relate to existing developments must be addressed to an acceptable standard as part of a planning application”.This is significant as the development would result in cumulative impacts that would not be acceptable to the Council’s aspirations as set out in Policy STRAT 4 – Ellesmere Port. The applicant must consider the interaction with other existing developments in the area such as housing, and impacts on existing surrounding uses and planned development.

Development Plan: Cheshire West and Chester Local Plan (Part Two)

3.49 The Cheshire West and Chester Local Plan (Part Two) Land Allocations and Detailed Policies Submission Version (March 2018) which was examined in September 2018 also contains relevant policies. It is subject to some amendment. Therefore, these policies nearing adoption should be afforded some weight. The most relevant policies are referred to below.

 EP 1 – Ellesmere Port settlement area

3.50According to Policy EP1 delivery of Local Plan Part One Policy STRAT 4 – Ellesmere Port will be via the regeneration of previously developed land for a range of uses, particularly to support new housing development. The shale development would be a departure from this policy and should be afforded some weight.

M 4 – Proposals for exploration, appraisal or production of hydrocarbons

3.51 This Policy M 4 is to support Local Plan (Part One) policy ENV 7 to ensure proposals for all stages of oil and gas development (exploration, appraisal and production) will be supported and it lists a number of criteria, including (not exhaustive) and of relevance to the application, :

  1. Gas emissions from exploration, appraisal or production operations and from associated transport methods are controlled and minimised using the best available technology. Gas emissions must not have a significant detrimental impact on air quality, residential amenity or the environment, in line with Local Plan (Part One) policy SOC 5;
  2. It can be ensured that any noise and/or vibration is controlled, mitigated or removed at source so that proposed noise and/or vibration levels are acceptable and will not have a significant detrimental impact on residential amenity or human health, in line with Local Plan (Part One) policy SOC 5. The proposal should not result in an unacceptable rise in background noise levels at the nearest sensitive receptors, in line with current Government guidance; and Local Plan (Part Two) policy DM 30;

3.52 Accordingly, the development should not be permitted as the gas emissions and noise have potential to harm the air quality and noise levels. This policy should be afforded some weight.

 DM 33 – New or extension to hazardous installations

3.53 According to Policy DM33: “Hazardous substances consent or development proposals which either creates new hazardous installations or extends existing hazardous installations, including pipelines will be supported where: the development does not create or increase risk to the general public or environmental sensitive areas and retains an appropriate distance from the hazard.”This proposal fails this local plan policy test.

3.54 This policy should be given significant weight. It is unlikely that the policy would change in advance of being adopted.

DM 43 – Water quality, supply and treatment

3.55 In line with Local Plan (Part One) policies ENV 1, ENV 4 and SOC 5, development proposals will be supported where it can be demonstrated that the proposal will not cause unacceptable deterioration to water quality or have an unacceptable impact on water quantity (including drinking water supplies) or waste water infrastructure capacity. Proposals should ensure that sufficient water resources are available and the development does not affect the water quality of surface or groundwater.

3.56 This policy should be given significant weight. It is unlikely that the policy would change in advance of being adopted.

Conclusion

3.57 I find that the proposed development does not comply with the current Development Plan, nor does it comply with the forthcoming Local Plan Part 2. Accordingly, planning permission should be refused unless material considerations indicate otherwise.

4. Other Material Considerations

The National Planning Policy Framework

4.1 The revised National Planning Policy Framework, 2018 sets out the Government’s planning policies for England and how these should be applied. Central to the NPPF 2018 is paragraph 11 which sets out that plans and decisions should apply a presumption in favour of sustainable development. For decision-taking this means:

  1. c) approving development proposals that accord with an up-to-date development plan without delay; or
  2. d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:
  3. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed6; or
  4. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

Footnote 6: The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest (underlining my emphasis) ; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.

4.2 There are other statements of government policy which may be material when preparing plans or deciding applications, such as relevant Written Ministerial Statements and endorsed recommendations of the National Infrastructure Commission.

4.3 NPPF 2018 Section 4 sets out the Government’s approach to determining applications. In paragraph 47. It says “Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. Decisions on applications should be made as quickly as possible, and within statutory timescales unless a longer period has been agreed by the applicant in writing.”It goes on to state in para 48. Local planning authorities may give weight to relevant policies in emerging plans according to:

  1. a) the stage of preparation of the emerging plan (the more advanced its preparation, the greater the weight that may be given);
  2. b) the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and
  3. c) the degree of consistency of the relevant policies in the emerging plan to this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).

4.4 NPPF 2018 Section 8 Promoting healthy and safe communities sets out in paragraph 91 that planning policies and decisions should aim to achieve healthy, inclusive and safe places which promote social interaction. An example it provides is mixed use developments, places that are safe and accessible and places that enable and support healthy lifestyles. In paragraph 92 it says planning policies and decisions should support the delivery of local strategies. Taking note of NPPF 2018 paragraph 93 Planning Policies and decisions should consider the social, economic and environmental benefits of estate regeneration. Local planning authorities should use their planning powers to help deliver estate regeneration to a high standard. This is in line with and gives extra weight to development plan Policy STRAT 4- Ellesmere Port which aims to build 4,800 homes and new local jobs. In light of paragraphs 91 and 93 of the NPPF 2018, this policy should be given great weight.

4.5 NPPF 2018 Section 14 Meeting the challenge of climate change, flooding and coastal change sets out the Government’s planning policy for the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure. This is reflected in the Council’s Policy STRAT 1- Sustainable development. In light of paragraph 148 of the NPPF 2018, the Council’s approach to STRAT-1 and its reliance on the policy in its reason to refuse the development is justified. The GHG emission impact of the proposed development should be given significant weight.

4.6 NPPF 2018 Section 15. Conserving and enhancing the natural environment sets out Government intention for planning policies and decisions to contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes, sites of biodiversity, recognise the wider benefits from natural capital and ecosystems, minimising impacts and providing for net gains on biodiversity (paragraph 120 bullets a, b, d and e). Paragraph 171 states “Plans should: distinguish between the hierarchy of international, national and locally designated sites; take a strategic approach to maintaining and enhancing networks of habitats and green infrastructure; and plan for the enhancement of natural capital at a catchment or landscape scale across local authority boundaries.

4.7 Paragraphs 174 to 177 set out national planning policy for habitats and biodiversity. Safeguarding of international, national and locally designated sites of importance for biodiversity and enhancement of priority habitats is emphasised. When determining applications, local planning authorities should apply certain principles. If significant harm to biodiversity cannot be avoided, adequately mitigated or compensated for, then planning permission should be refused. Paragraph 77 states “The presumption in favour of sustainable development does not apply where development requiring appropriate assessment because of its potential impact on a habitats site is being planned or determined.

4.8 Local Plan (Part One) Policy ENV 4 –Biodiversity and geodiversity is a translation of Section 15 in that it seeks to safeguard and enhance the natural environment. Significant weight should be is attributed to this, particularly due to the proximity of one of the country’s most important wildfowl overwintering sites in the UK (Mersey Estuary Priority Habitats, SSSI, RAMSAR, SPA).

4.9 In NPPF 2018 Section 17 facilitating the sustainable use of minerals the Government sets out national planning policy for this development proposal. In paragraph 205 the Framework sets out that local planning authorities should give great weight to the benefits of mineral extraction, including to the economy, and in paragraph r 209 that Mineral Planning Authorities should:

a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction.

b) when planning for on-shore oil and gas development, clearly distinguish between, and plan positively for, the three phases of development (exploration, appraisal and production), whilst ensuring appropriate monitoring and site restoration is provided for.

4.10 The inspector is required by the NPPF, 2018 to attribute great weight to the benefits of mineral extraction and the economy.But as the development is for exploration it will be for a short duration and therefore the economic benefits will be modest and accordingly little positive weight should be applied. This is in contradistinction to the negative impacts of the proposed development – although the duration is short, the witnesses on behalf of the Rule 6 party dealing with climate change, air quality, geology and social sustainability all explain why the negative impacts of the proposed development will endure beyond the short lifespan of the works.

4.11 Clearly, the Cheshire West and Chester Local Plan (Part One) is an up to date development plan with relevant policies with which the development does not accord. I acknowledge the great weight that is to be afforded this type of development, but as mentioned the short duration of exploration limits the benefits, and these have to be balanced with other sections of the NPPF.  Paragraphs 205 and 209 do not require MPAs to implement a blanket grant of planning permission to all minerals development regardless of where it is to be located or what the impacts to the locality will be. So, while great weight must be afforded to the application, as the policy states, it should not be used as a trump card permitting harmful development in a sensitive place.  Clearly this would be wrong.  It is true to assert that even greater weight may be accorded to other policy, or policies, with which the development does not comply – for example climate change.

National Planning Practice Guidance

4.12 Decisions should refer to national planning practice guidance.

Shale Gas and Oil Policy Statement by DECC and DCLG (13 August 2015)

4.13 Material to this decision is the Shale Gas and Oil Policy Statement by DECC and DCLG. It set out the Government’s view that there is a national need to explore and develop our shale gas and oil resources in a safe, sustainable and timely way, and the steps it is taking to support this. This statement should be taken into account in planning decisions and plan making and attributed sufficient weight.

Written Ministerial Statement: Energy Policy (17 May 2018)

4.14 The Written Ministerial Statement (WMS) of Greg Clark, Secretary of State for Business, Energy and Industrial Strategy, and James Brokenshire, Secretary of State for the Ministry of Housing, Communities and Local Government, on 17 May 2018 is a material consideration in plan-making and decision-taking, alongside relevant policies of the existing National Planning Policy Framework (2012), in particular those on mineral planning (including conventional and unconventional hydrocarbons). In essence it reiterates the WMS of 2015. That each case will be considered on its facts in line with policy.

4.15 Mineral Planning Authorities (MPAs) should confine their determination of applications relating to the discovery and production of shale gas to consideration of surface factors and to leave underground factors to be controlled by the regulatory authorities, namely the Environment Agency, the Health and Safety Executive, and the Oil and Gas Authority.

4.16 Surface factors include planning for the potential hazards associated with the development, whether it is for matrix acidisation, acid squeezes and/or acid washes, must be fully understood in terms of managing hazards, including the storage of dangerous chemicals, the risk from flowback of acids and other fluids, escape of flammable gas or even blowouts. Should a blowout occur, fluids and solids from within the well are released and could be dispersed over an area extending beyond the site containment system.  They can take hours to days to contain, depending on the size of the reservoir that contained the high-pressure.

4.17 The MPA has a duty to ensure that land use is appropriate in the location it is permitted. Therefore, the location of the site in relation to sensitive receptors (e.g. residents, schools, businesses, priority habitats) has to be taken into account. Measures to mitigate harm need to be put in place, in so far as possible, through site design and planning conditions.

Written Ministerial Statement : Shale Gas and Oil Policy (16 September 2015)

Also a material consideration relevant to the decision is the Written Ministerial Statement relating to Shale Gas and Oil Policy by Amber Rudd Secretary of State for Energy and Climate Change. This statement should be taken into account in planning decisions and plan making and weighted appropriately.

A Green Future: Our 25 Year Plan to Improve the Environment (2018)

4.19 A material consideration is the DEFRA: A Green Future: Our 25 Year Plan to Improve the Environment (2018). Planning decisions should work on the principle of leaving our environment in a better state from then we found it.  Therefore developments must contribute net gains for the environment.  This should be attributed great weight.

Climate Change Act 2008

4.20 The Government has taken a number of steps to limit the UK’s emissions of greenhouse gases through legally binding targets, both now and in the future. The Climate Change Act 2008 sets the framework for how the UK will manage and respond to the threat of climate change. It includes:

  • 2050 Target – committing the UK to reducing total greenhouse gas emissions by at least 80% in 2050 from 1990 levels.
  • Carbon Budgets – legally-binding limits on the total amount of greenhouse gas emissions the UK can emit for a given five year period.

4.21 The gases identified as contributing to climate change include: carbon dioxide (CO2), methane (CH4), hydrofluorocarbons (HFCs), nitrous oxide(N2O), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6). It is standard practice to report greenhouse gas emissions in tonnes of CO2 equivalents (CO2e) and guidance for doing so is issued by DEFRA.

4.22 In taking its own emissions seriously the Council has published a Carbon Management Plan 2016-2020 Phase 2 (EP24). It is taking seriously the issue of climate change representing the views of local people who are concerned about climate change impacts too.

4.23 The Climate Change Act, 2008 is enshrined legislation and the decision must be taken to accord with it. Limiting GHG and evidencing reductions of at least 80% by 2050 from 1990 is a material consideration.  The progress in terms of Carbon Budgets by the Council should be understood.  Significant weight should be attributed with planning in accordance with the Act.

Committee on Climate Change

4.24 TheCommittee on Climate Change: Onshore Petroleum – The Compatibility of UK Onshore Petroleum with Meeting the UK’s Carbon Budgets (March 2016, published 7 July 2016)Report (CD 8.6) is also a material consideration. This should be afforded significant weight.

The Paris Climate Agreement 2016

4.25 The Paris Climate Agreement2016 (EP 24) is a material consideration. This should be afforded sufficient weight.

The Localism Act 2011

4.26 According to the Localism Act 2011, local government plays a crucial role in the life of the nation. It is directly responsible for important public services, from street lighting, to social care, to libraries and leisure centres. It makes sure that other services work together effectively for the good of the community. And with councillors elected by and accountable to local people, local government provides democratic leadership. The main mechanism of the Localism Act 2011 are set out under the following 4 headings:

  • new freedoms and flexibilities for local government
  • new rights and powers for communities and individuals
  • reform to make the planning system more democratic and more effective
  • reform to ensure that decisions about housing are taken locally

4.27 It is important that Cheshire West and Chester Council is allowed to decide on shale developments as the responsible Minerals Planning Authority.It is a matter for the Council to decide whether the application accords to its Development Plan, and to consider material considerations including its own policies for climate change reduction, and to form a local planning judgement in accordance with the Localism Act. The public expects Localism to be taken seriously by Government, so that the planning system can become more democratic and more effective.

Conclusion

4.28 Having considered the other material considerations I find no good reason why the development should be permitted, in conflict with the Development Plan.

4.29 The Rule 6 Party has not been involved in the process of agreeing the Statement of Common Ground and so has not been able to contribute to the proposed conditions. Without prejudice, should the application be allowed, against the reasons in the Council and the Rule 6 Party’s cases to refuse, FFEPU would wish to forward recommended planning conditions at an appropriate juncture to minimise risks at the various stages of the development, including site restoration.

5. PLANNING BALANCE

5.1 All the relevant planning policies and material considerations need to be appropriately weighed to find the correct planning balance of the proposal.

5.2 My view is that the development does not comply with the Development Plan policies: STRAT 1, or with the policies STRAT 4, SOC5 ENV1, ENV4, ENV7 and ENV9 all of which I attribute significant weight.

5.3 In addition there are a number of policies in the Local Plan (Part Two) that are relevant and not supported by the development. Although not yet being adopted, the departure from these policies (EP1 Ellesmere Port Settlement Area and M4 Proposal for exploration, appraisal or production of hydrocarbons) should be given some weight. However, policies (DM33- New or extensions to hazardous installations, and DM43 –Water Quality), supply and treatment should be given significant weight as they are unlikely to change, and due to the significance of the public impact.

5.4 The development is contrary to the policies set out in the Oil and Gas Exploration, Production and Distribution Supplementary Planning Document (SPD) May 2017 (5) and would recommend attributing full weight to this up to date Council guidance document.

5.5 The development is undoubtedly contrary to the Development Plan so planning permission should be refused unless material considerations indicate otherwise.

5.6 The NPPF 2018 is a material consideration. I would recommend that the regeneration ambitions of Section 8 Promoting healthy and safe communities and Section 14 Meeting the challenge of climate change, flooding and coastal change are given great weight. For Section 15 regarding conserving and enhancing the natural environment I would give significant weight due to the status of the Mersey Estuary Priority Habitats. Section 17 attributes great weight to the benefits from the type of development being put forward, but as an exploration stage of limited duration, the economic benefits are limited also.

5.7 Other material considerations to be balanced are the Government’s policy and various Written Ministerial Statements that recognise the benefits of shale developments, in appropriate locations, to be given great weight, the need to leave our environment in a better shape than we found it, and the urgent need to pursue climate change goals at the international, national and local level to be given equal great weight. The fact a specific working group for on-shore oil and gas developments to better inform the Council, which has a long history of mineral developments, and the intention of the Localism Act to make planning decisions more local and democratic should allow Mineral Planning Authorities to determine where mineral extraction is appropriate, and where it is not.

5.8 The expert witnesses appearing on behalf of the Rule 6 Party have evidenced that the proposed development is not sustainable, socially, environmentally or economically. Lack of social sustainability is addressed by Dr Szolucha, Mr Colin Watson and Prof Watterson. Lack of environmental sustainability is addressed by Prof Anderson, Prof Smythe, Mr Grayson, Dr Saunders, Mr Watson and Prof Watterson. Lack of economic sustainability is addressed by Prof Anderson and Mr Plunkett. In my view these harms are clear reasons supporting a refusal of the type of development at the specific site.

5.9 Taken together the material considerations in my view suggest permission should not be granted.

5.10 Summary

5.11 Based on the evidence I recommend that the application be refused.

Jackie Copley MA BA (Hons) PgCert MRTPI

10thDecember 2018