Call for evidence on permitted development rights for mineral exploration
Environment Minister, Mark H Durkan, has issued a ‘Call for Evidence’ on permitted development rights for mineral exploration. This follows a number of high profile cases where members of the public have opposed proposals to explore for shale gas both in Fermanagh and in Woodburn, County Antrim.
The Minister will formally gather views on whether the existing development rights for onshore oil and gas exploration need to be addressed.
Mark H Durkan explained: “The existing permitted development rights were designed to deal with onshore oil and gas exploration involving the conventional techniques that were used over two decades ago. The industry has progressed since then. The ‘Call for Evidence’ will provide an opportunity for all interested parties to express their views on key matters that they consider need to be addressed.”
Permitted Development Rights
Mineral exploration for all purposes is granted permission by virtue of Class A of Part 16 to the Schedule to the General Permitted Development Order (GPDO). It permits development on any land for a period not exceeding four months consisting of the drilling of boreholes, the carrying out of seismic surveys, or the making of other excavations for the purpose of mineral exploration. It also permits the temporary erection of structures on the land.
Importantly the developer must also notify the district council in writing giving details of the location of the proposed development, target minerals, details of plant and operations and anticipated timescales. This allows the Local Council, should it wish, to make a direction within 21 days of receipt of the notification that the permitted development right should not apply and that the development should not be carried out unless permission for it is granted on a planning application.
Waste Management Plan
The Developer must also prepare a Waste Management Plan under The Planning (Management of Waste from Extractive Industries) Regulations (Northern Ireland) 2015, detailing how it intends to deal with waste products which arise from the exploration process. This must be submitted to the Council for approval BEFORE it can submit a notice under Part 16 of the GPDO. This Waste Management Plan must then be advertised and consulted upon. These provisions came into operation on 1 April 2015.
A key issue, as rightly highlighted by the Minister is the rapid change in the technology and processes used in extractive industries. At the time the GPDO legislation was drafted, onshore oil and gas exploration was seen as a remote possibility. Furthermore, planning powers were, at that time, exercised by the Department, which had a specialist Minerals Branch, which had over the years developed an expertise in extractive industries and had developed a detailed knowledge of the processes involved. Most Councils do not have such expertise and would struggle to get to grips with the environmental implications of a technically complex process in a 21 day period.
With Council planning powers still in their infancy, Councils may face difficulties in obtaining the necessary expertise to analyse and assess waste management plans submitted to it. This will have two possible outcomes. Either Councils will simply adopt a precautionary approach and refuse permitted development rights for all such exploration activities or there is a danger that activities which should be subject to the rigours of a full planning application process do not receive such scrutiny.
It is the writers personal view that steps need to be taken to ensure that Councils have access to experts with sufficient knowledge and experience of extractive industries to allow them to make an assessment of each Waste Management Plan and notification that it receives. Such resources will ensure that the balance between development and protecting our environment can be struck.
The ‘Call for Evidence’ paper is available to view or download via the link below.
Representations can be made until 13 May 2016.