On 17 December 2015 and following earlier consultation the Government confirmed that it will bring forward important amendments in 2016 to enable the drilling of boreholes for monitoring and investigative purposes in respect of petroleum exploration to be carried out as permitted development (PD rights). These PD rights will permit groundwater monitoring (with the duration extended from 6 to 24 months), seismic investigation and monitoring, and location and appraisal of mine workings.
In all cases the PD rights will apply to both the temporary use of land (no more than 28 days) and the longer use of land (no more than 6 months – except in the case of groundwater monitoring, where the period will be extended to up to 24 months). Relevant existing conditions and restrictions attached to the current PD rights for mineral exploration will apply, together with those previously announced in August.
Currently and until the changes are implemented, either for the works alone or possibly as part of a wider permission(s) covering petroleum exploration, a planning application must be made to the mineral planning authority (MPA) to sink boreholes for petroleum (including shale) exploration, but not for mineral exploration. However, water monitoring boreholes for a petroleum exploration project are in essence similar to water monitoring boreholes used for other mineral exploration.
For boreholes drilled for monitoring for petroleum exploration, a new requirement will be included for operators to notify the Environment Agency and Drinking Water Supply Undertaker of all boreholes; and to notify the Coal Authority of boreholes drilled for the purposes of the location and appraisal of mine workings.
Additionally, provisions of the Infrastructure Act 2015 will (when in force) require that methane in groundwater is monitored over a twelve month period, as one of a number of conditions that need to be met before certain high volume hydraulic fracturing can occur.
Following two consultations the Government has confirmed that it intends to amend the Town and Country (General Permitted Development) (England) Order 2015 (2015 Order) to provide for these new PD rights. Our briefing on the Government's first August 2015 consultation can be read here and below we summarise the further PD rights now confirmed.
Shale gas PD rights
(1) Extended duration of permitted development rights for groundwater monitoring
The Government has now confirmed that it intends to amend the 2015 Order so that for groundwater monitoring purposes a maximum period of up to 24 months will apply (rather than the initial 6 month period proposed). It is confirmed that the rights would be subject to the same restrictions and conditions, with the additional amendments agreed in August 2015, as those which currently apply to mineral exploration. We have summarised the proposed conditions and restrictions in our previous briefing which can be read here.
The Government response states that it will be taking forward the longer time period in recognition of the fact that establishing the groundwater baseline may take longer than 12 months, depending on the geology, and can also be influenced by seasonal variations in groundwater levels, and also in light of the Infrastructure Act 2015 requirements for groundwater monitoring associated with certain hydraulic fracturing proposals.
The response notes that in the unlikely event that a rig and any associated structure were to remain on site for the full 24 month period the Government considers that the new right is acceptable given the limited visual impacts and disturbance that might arise, and the restrictions and safeguards imposed on the right. Such a practice would rarely make economic sense for the developer. However, note that in certain circumstances the MPA will have the power under Article 5 of the 2015 Order, to require a planning application if it considers the cumulative effects of development already being carried out, or notified to it, would be seriously detrimental to local amenity or well-being.
It is confirmed that the new PD rights will also be subject to the requirement to notify the Environment Agency and the relevant drinking water supply undertaker in advance of works of all proposals to drill boreholes. The Environment Agency's required 50 metre minimum standoff distance will not be amended and will apply to any source of drinking water or water used for food production.
(2) Seismic investigation and monitoring
Currently developers proposing to carry out seismic monitoring may carry out surface investigations, but they may not, without planning permission, drill boreholes for seismic monitoring. In practice, passive seismic monitoring may involve accommodation of monitoring equipment within boreholes, or active monitoring which may involve a charge set within a borehole.
The PD rights will cover the drilling of exploratory boreholes to carry out of seismic investigation and monitoring and the existing conditions attached to PD rights for mineral exploration will be transposed across to the new rights. These include the sealing of boreholes at the end of the permitted development period and the current conditions applied to the permitted development rights for mineral exploration limiting the amount of explosive charges that may be used.
Developer will in all cases be subject to ecological restraints under the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2010. In addition they will have a duty to exercise care and would be expected to use best practice techniques when carrying out drilling.
(3) Location and appraisal of mine workings
The new PD rights will also to cover the drilling of exploratory boreholes for the purposes of locating and appraising mine workings.
Operators will need to comply with general law and will be expected to observe best practice, in particular those guidelines set out in the Coal Authority/Health and Safety Executive document "Guidance on Managing Risk of Hazardous Gases when Drilling or Piling near Coal". Any boreholes that intercept coal seams or legacy coal mining features will require a permit from the Coal Authority.
A new requirement will be implemented that will require operators to notify the Coal authority of proposals for drilling boreholes under the new PD rights to ensure that they receive direct notification.
What happens next?
The Government response states that implementing regulations to amend the 2015 Order will be laid before Parliament in 2016.