This article is part of a series in which DLA Piper professionals define what the Northern Powerhouse means to them, and how to deliver the regeneration of the Northern economy. The author was part of a forum that contributed to an article in Super North, a monthly supplement produced by The Times and sponsored by DLA Piper.
One of the key issues facing Teeside MP James Wharton following his recent appointment to the position of Parliamentary Under Secretary of State for Communities and Local Government with responsibility for taking forward the new UK Government's 'Northern Powerhouse' initiative will be how the planning system can be used to facilitate growth and investment opportunities across Northern England.
The development of the Bowland shale formation, which according to some analysts has the potential to deliver 400-500 trillion cubic feet of gas to the region's transmission system presents him with perhaps both his most pressing problem and opportunity.
Mr Wharton need only look to the challenges that are currently faced by several of the shale gas exploration companies, as they struggle to obtain planning permission to drill single exploratory boreholes in sparsely populated areas, to see the tension that exists between his Government's recent statutory commitment to maximise the economic recovery of shale gas and its concern that the planning system does "not give members of the public enough influence over decisions that make a big difference to their lives."
At the same time as the regulatory framework in England (already described by some commentators as 'best in class') is being further strengthened by the UK Government through the new safeguarding provisions relating to onshore hydraulic fracturing introduced under the Infrastructure Act 2015, a cursory examination of the flood of objection letters that follows the submission of applications for shale gas exploration, provides an insight into the scale of the difficulties which it faces in trying to persuade local communities that the use of hydraulic fracturing will not rend the very fabric of civilisation asunder.
If there is to be any chance of the economy of the 'Northern Powerhouse' being powered by shale gas, operators must be given the opportunity to demonstrate that fracking can be carried out safely. The lessons that have been learned by the US and Australian environmental regulators can be applied from the outset in the UK.
Local communities, for their part, must acknowledge the strategic need for energy and be prepared to allow pilot projects to proceed in their area in the safe knowledge that, if they are successful, there will be a significant financial return through the Government's new community payment scheme introduced under the Infrastructure Act 2015.
Mr Wharton is obliged now as a matter of law to produce a strategy to maximise the economic recovery of unconventional gas. So far as the planning system is concerned, the strong support for unconventional gas development set out in the National Planning Policy Framework has to be carried over into the Local Development Framework. That, however, will take some time as development plans come forward for review.
In the meantime, there are other steps that Mr Wharton might wish to consider introducing on the planning front. For example, permitted development rights could be extended to allow exploratory drilling to go ahead without the need for express planning permission provided all other relevant environmental permits were in place. These temporary operations are by definition speculative in nature and have a minimal impact on the environment. It follows, therefore, that energy companies should not have to expend, in some instances, hundreds of thousands of pounds to try to obtain planning permission for a development on which they may achieve no return.
The quid pro quo is that at the production stage operators should expect to submit their proposals to a full environmental impact assessment and explain to the local community precisely what 'full field production' would look like on the ground and how its impacts would be mitigated. A suite of model planning conditions should be drafted for each separate phase of the development and applied consistently across the country thereby providing certainty for all parties.
A standard community trust framework agreement could be introduced with the only issue for debate being which local projects should be nominated for funding support. So too could a shadow monitoring regime for treated produced water quality whereby a panel of nominated local residents select their own consultants to validate the test results produced by the operators.
Given the moratorium on unconventional gas development imposed by the Scottish Government, it is inevitable that the Bowland Shale in Northern England will provide the principal focus for operator interest over the next few years. The synergy between the UK Government's twin objectives of maximising the economic recovery of shale gas and creating a Northern Powerhouse is obvious.