A number of local authorities, including Leitrim County Council, are considering amending their development plans to include a ban on hydraulic shale gas drilling (fracking) due to their concerns that this process can adversely effect human health, animal health and the environment, principally by the contamination of water resources. There has been widespread debate as to whether such an inclusion is beneficial, necessary, futile or indeed even possible.
By Deirdre McCaffrey BL
As provided for in the relevant Acts, a development plan sets out the overall strategy for the proper planning and sustainable development of the area. Judicial statements have emphasised that its use is to control and regulate the user and the development of property. John Gore Grimes, leading expert in Irish planning and environmental law, describes it as the lynchpin in the planning process.
Can a Development Plan be amended to include a ban on hydraulic fracturing?
A development plan can be amended by local elected representatives as a reserved function following a protracted process set out in the Planning and Development Acts 2000-2010. However, the inclusion of a prohibition such as a mining ban was deemed invalid in the case of Glencar Exploration v Mayo County Council (1993). The case concerned a company who, having been granted prospecting licences by the Minister for Energy in 1986, carried out mineral exploration for a number of years at considerable cost and formed the view that commercial quantities of gold existed in the Westport region. Their next step was to extract the minerals. The Co Mayo development plan was amended to include a mining ban. The plaintiff company, Glencar Explorations initiated judicial review proceedings against the Council on the grounds that the mining ban was illegal. The High Court agreed. The trial judge stated that development objectives must be positive in character – a ban is totally negative as its purpose is to prevent development not to have it as an objective.The ban was ruled to be ultra vires the County Council.
This issue may well be litigated in the future and a different decision reached but that is an unknown. Under current law, an amendment to ban fracking would be deemed invalid and hence futile in a planning permission context. It would be prudent, therefore, to amend the plan in a manner consistent and meaningful to the decision-making process, leveraging impact on the regulation/control of the fracking industry within the meaning of proper planning and sustainable development.
Can the Minister overrule a proposed amendment?
Government policy prescribes that natural resources should be exploited if environmentally acceptable. As a general rule development plans must in so far as is practicable be consistent with government policy. In addition, a local authority wishing to vary a plan, such as to take cognisance of the heavy-duty fracking process, is required to consider government or ministerial policy and objectives. If the authority ignores or does not take sufficient account of same, the Minister has power to direct the authority to take certain specified action.
Will a planning permission application for hydraulic fracturing be decided by Leitrim County Council?
No, applications for energy infrastructure, such as onshore extraction of natural gas, must be made direct to An Bord Pleanala. Consequently, any amendment made to the plan providing for the effects of the shale gas industry will impact on a fracking application but only in so far as the Board must consider the plan in the overall decision process. Significantly the 2006 Act provides that An Bord Pleanala may grant permission for strategic infrastructure even though the proposed development contravenes the development plan.
The article above is for information purposes only.
Deirdre McCaffrey is a barrister. She lectures in IT Sligo.