UK Pre App Consultation: The Legal Right Versus the Social Right

When it came to making planning applications to drill onshore exploration wells in the UK, at Unconventional Gas Aberdeen 2014, Jessel Gair, Head of Legal, Land & Planning, Dart Energy (Europe) Ltd., noted that times had changed for companies like his, whose main target is coal bed methane (CBM).

He recalled, “These drilling operations were considered to be routine, short-term and low impact, not only by us but also by the regulatory authorities.”

But, he added, along with the “shale opportunity” had come the term fracking, “which was immediately hijacked and demonized by those opposed to the development of fossil fuels. However, it has become a catch-all for any onshore hydrocarbon drilling operation, whether fracking is involved or not.”

Dart Energy, said Mr. Gair, saw nothing wrong with fracking as part of the operation of drilling for hydrocarbons, adding that the company was currently involved in exploration of CBM and shale with GDF Suez and TOTAL.

He reported, “Dart Energy has recently been at the meetings of its long-held CBM exploration approvals and the public are questioning how we got them in the first place; we have to explain that we obtained each permission when the public interest in drilling activities was much less than it is now.

“It is clear, that we must now engage with the public earlier and much more intensively.”

Pre application consultation, he said, helped to merge considerations with both the legal right and the social right. “It ensures that applications are appropriately scrutinized by the general public, including those persons who may be immediately exposed to, or those who may benefit from the impact of our developments,” he explained.

The new buzzword for social campaigners, he said, was “social license,” which he defined as: “Demonstrating, through the execution of its legal rights, that a company has due regard for the impact of its operations on the community and the environment in which it's working.”

Despite a history of operational excellence, Mr. Gair admitted that the UK had had very limited opportunity to demonstrate that record with shale drilling. Referring to a regulation, he said it was to ensure that members of the public had a human right that they were included in decisions in their local communities.

In this context, he recommended a simple message for the industry: “We need gas. We can get it out safely. We've been doing it a long time.”

He spoke of the 2008 regulations that provides guidance to pre application consultations and the requirements of a single public event: “The requirements are quite clear: the details of the development, of the plan, of the application and the nature of the pre application consultation required.”

“The key thing to remember is that this is just a proposal to apply; the local authority can still reject, refuse or amend your application at this stage, so it's absolutely imperative that you get your pre application consultation and reporting procedures in the right place,” he commented.

Mr. Gair said he had witnessed several authorities require additional consultations in other major developments.

He then went on to offer how Dart Energy went about the process, which involved taking out newspaper adverts, and inevitably the front page of local papers. Dart, he said, also advertised in shops, pubs, garages, community councils, put leaflets in local residences, and carried out public exhibitions in community halls. All of the information, he added, needed to be provided in a non technical, palatable fashion.

Dart also provided permanent in-house exhibition, as well as maintained project websites and social media presence on the company's drilling activities.

He noted the change that had come about due to social media, which had had a huge impact on the application/consultation process.

“First of all, anyone can object, and Facebook and Twitter make it pretty easy and cheap for them to organize and their numbers increase significantly, in real time,” he explained.

Because there were no checks and balances for veracity, there were instances where Dart had had to challenge the quality of information posted about its activities on social media.

He added, “It can attract serial protesters and people that we know protest other things – not just what we do.”

Still, in the political context, Dart had to take a cautious approach to how it responded online, but Mr. Gair said the company also used it as a positive tool, for example to advertise all of its public events, but also to communicate facts. “We regularly re Tweet stories that are not necessarily true or particularly inflammatory – we try and add some truth to the subject,” he explained.

Monitoring Twitter was also valuable for understanding activists' movements, according to him.

Among his “Top Tips,” he said that, according to the Planning Acts, there was a presumption in favor of development. This required Development Plan efforts towards policy inclusion of your development and again consultation with the public.

Building public trust & confidence was also crucial.

“Once we obtain consent and commence drilling, and operations, it's the same member of the public that will pick up the phone to the planning officer or enforcement officer and complain about activities, so it's key that the pre application consultation process gains trust and confidence,” he said.

Understanding the real public concern was also crucial. “Is it a case of 'not in my own back yard'? Is it environmental justice, or is it something that we can mitigate with the planning condition or a planning agreement?”

Industry messages, he said, must also target decision makers.

“Previously, as an industry, we could rest on our laurels, where the legal right to develop was established. Today, even if we are on the right side of the law, we must still earn a social license for our interests. The concept of social sustainability is rampant, and development cannot be achieved at all social costs. If we earn the social right by proving we deserve it, we will then be granted the right to develop it.”

He concluded, “The public deserve to understand, have the right to be heard. They deserve our transparency in a non technical way, and they deserve our honesty – always.”