FAO Ms Lucy Harding.
RE: SDNP/13/05896/CM - The installation of a well and associated infrastructure, including access road and soil bunds, for the drilling of a vertical borehole and contingent horizontal borehole from the same well for the exploration, testing and evaluation of hydrocarbons for a temporary period of three years at Nine Acre Copse, Vann Road, Linchmere, West Sussex
Dear Ms Harding,
I am writing in objection to the above referenced planning application. I have split my response into two parts. The first part deals with the applicant’s submission documents and references made within them. The second part raises several concerns either not included in the applicant’s documents, or for which no reference to a particular passage is necessary.
Please note that many of the points quoted in my responses appear in several other documents other than the one I am referencing, and so in order to avoid unnecessary repetition, I will only comment upon these points the once, although my comments will apply equally to all other occurrences in other non-cited documents. To aid cross-referencing with the relevant document, I have used the same titles as those that appear on the South Downs National Park Authority’s planning website for this application.
1.1) Alternative Sites Assessment – Figure 5.2
1.1.1) This document clearly shows that the proposed site is within close proximity to a number of residential properties, falling just outside the 400m buffer zone of at least eight properties – the most of any of the alternative sites assessed. The application at would therefore have significant impact upon a significant number of residences through noise, light and visual pollution.
1.2) Alternative Sites Assessment
1.2.1) Paragraph 2.13 states “From this evaluation it will be possible to establish whether hydraulic fracturing might be required in the future although no hydraulic fracturing will be used as part of this exploration activity, and therefore does not form part of this planning application.” However, the latest Government graphics clearly state that wells are ‘fracked’ during the exploration process.
1.2.2) Furthermore, Paragraph 2.12 states the applicant intends to assess the porosity of the Great Oolite layer which would indicate that the applicant could well be intending to test ‘frack’ this well.
1.2.3) Paragraph 5.31 indicates that the proposed site is situated within an area of ancient woodland – one of the most important ecosystems in the UK – to which the applicant asserts is a feature that would support the site being considered a suitable location to drill a well because of natural screening. However, Ancient Woodlands are often species rich and the application would impact adversely upon this particular habitat and the associated ecosystem through unacceptable intrusion of noise, light, air pollution and/or contaminants and vibrations. The application would essentially cause much of this habitat to become intolerable for the wildlife in addition to causing them great stress. The application would also result in a sizable area of the associated ecosystem to be destroyed and removed. There is evidence to suggest that plant life is adversely impacted by drilling operations, such as at Singleton.
1.3) Application Drawings – 1 to 14
1.3.1) The drawings indicate that the site is currently wooded and therefore the development would necessitate the removal of a large number of trees. I understand that the purpose of a plantation is for the sustainable growth and felling of trees for timber, but the proposal would see almost the entire plantation felled in one and thus severely impacting upon the ancient woodland ecosystem that incorporates the plantation.
1.4) Application Drawings – 17 to 29
1.4.1) The site section drawings clearly show that the proposed 45m drill rig – including lighting – would tower much higher than the trees, which according to the drawings are no more than around 17m tall. Celtique had the cheek to dismiss Frack Free Fernhurst’s balloon demonstration as not accurately reflecting a drill rig, yet their own drawings demonstrate that the drill would indeed dominate the skyline for miles around, being the tallest structure in the vicinity by far and severely harming the character of the National Park.
1.4.2) Future replanting of the site is not an adequate mitigation measure since the damage to the ecosystem would have already been done. Long-term research into development mitigation measures has indicated that the long-term survival of wildlife removed from their habitat is reduced dramatically.
1.5) Chapter 3 – Application Site and Surroundings
1.5.1) Paragraph 3.9 states “There are no major aquifers under the Application Site, and it is not in an area where people use water from aquifers for water supply, either public or private.” However, an inspection of the Environment Agencies data shows that the proposed site in a ‘Minor Aquifer High Groundwater Vulnerability Zone’ and also in a ‘Surface Water Safeguard Zone’. The latter being non-statutory zones where “activities can impact adversely on the quality of water abstracted in the Drinking Water Protection Area.”
1.5.2) As with many areas of rural Sussex, there are likely to be a number of unrecorded water wells within the vicinity of the proposed site that are still used for a variety of purposes.
1.6) Chapter 4 – Project Description
1.6.1) Paragraphs 4.2 and 4.3 relate to Hydraulic Fracturing and state that the application is for a conventional well (that will explore for hydrocarbons in tight formations), that will not require the use of hydraulic fracturing, and that the extraction technique might not be needed in the future. This is the same statement they have had at their other Sussex sites and so I wish to point out that the applicant are seriously considering using this technique at their Sussex sites in the future and it has been revealed that the company have been in discussions with known ‘fracking’ companies including Halliburton regarding this. Approving this application would risk another application in the future to use this controversial technique and so this exploratory application should not be permitted in order to prevent such a risk coming to West Sussex.
1.6.2) Further to the belief held by residents, and contrary to the claims by Celtique that they do not intend hydraulic fracturing, comes an article in ‘Exploration & Production Magazine’ from 3rd July 2013. In this article it includes an interview with the CEO of Celtique – “Celtique Energie Ltd, backed by US private-equity firm Avista Capital Partners LP, is among companies seeking to pump shale oil in [the South-East]…They’re attracted by UK government plans to give tax breaks to stimulate a shale industry that can buoy domestic supply…Celtique plans to drill a well next year at Fernhurst in West Sussex…While hydraulic fracturing isn’t initially planned, Celtique may apply for such a license should it find shale oil, according to a presentation. “The reason why we’re excited by this position is it has multiple objectives for both conventional and unconventional” drilling, CEO Geoff Davies said in an interview in London.” The full article can be read here http://www.epmag.com/Production-Completion/Fracing-Debate-Looms-Southern-England_118532
1.7) Chapter 5 – Need and Alternatives
1.7.1) This document deals mostly with perceived national matters that are not material considerations for this planning application, or that which the South Downs National Park Authority or West Sussex County Council do not have the remit to consider in the determination of this application. The same is true for a substantial amount of the Planning Statement.
1.8) Non-Technical Summary
1.8.1) Paragraph 18.1 states “The Proposed Development would create employment opportunities directly due to the construction programme and also indirectly by the workforce creating demand in the local economy for supplies, services and temporary accommodation. The indirect benefits would be in job creation and additional local expenditure. The Applicant would seek to recruit the construction workforce from the local area…The Proposed development is anticipated to generate employment for approximately 44 people in trades identified as having a readily available labour force.” I have been intrigued by these claims that local employment will be created, in particular when Celtique Energie claimed that 250 jobs per annum would be created in the local area when they were consulting with regards to their Broadford Bridge site. I must firstly ask the Planning Committee to consider where all the jobs are at Lidsey, at Singleton and at Storrington? Where were all these jobs at Balcombe? Where are all these 250 jobs in Billingshurst and Pulborough? The applicants are not a drilling company, they instead employ sub-contractors to undertake the operations, who bring in their own employees rather than try and recruit at each new site they work at. Additionally, many of the jobs are highly skilled and so opportunities for local employment at the sites are very limited or negligible and on-site accommodation is supplied.
1.8.2) The Planning Committee are aware that whilst economic factors should be taken into account as a balanced assessment of applications, matters of the national economy are not a material planning consideration and so this argument by the applicant cannot be taken into account. Furthermore, the applicant places a lot of emphasis throughout their application documents on the national economy, energy security and job creation matters, seemingly implying that these are perhaps the most important factors. Similarly, several of the supporters claim that this type of operation is necessary for reasons of national energy security and wealth creation. However, the Committee will be aware of the recent High Court case of Cherkley Campaign Ltd, R v Longshot Cherkley Court Ltd  which raised two important points of relevance in this application. Firstly, it was ruled that the applicants claims of ‘sustainable development’ namely economic benefits, jobs for local people and accommodation are not in anyway unusual for commercial developments and so no special considerations should have been given to the application by the Local Planning Authority. And secondly, it was ruled that economic matters, whether local or national, cannot be given greater weight than any other matter such as social and environmental considerations. To do so was considered to be unlawful. Such ‘exceptional circumstances’ are not relevant to Paragraph 116 of the National Planning Policy Framework.
1.9) Statement of Community Engagement
1.9.1) Paragraph 4.3 shows that even at the pre-application consultation, the majority (55%) of respondents to the questionnaire disagreed or strongly disagreed that this site was an appropriate location, compared to 29% who did agree. Furthermore, Paragraph 4.7 shows that regarding the application as a whole, the total number of respondents not in favour or expressing concerns rises to 90% compared to just 11% in support (I am aware that this totals more than 100%, but I have used the applicants own figures). Note that the number of supportive comments has more than halved the number of people who did agree that the site was an appropriate location.
2.1) The applicant is applying for a three-year initial operation, meaning that if granted, would allow them permission until 2016/2017. However, their DECC Licence for the area expires in 2014 and it would therefore be inappropriate for the South Downs National Park Authority to assume that Celtique Energie and/or their partner Magellan Petroleum would be granted a renewal after expiration. The Authority must be prepared, if permission is granted, to take enforcement action should the applicant continue to operate beyond permitted conditions or licence expiration, and not permit any breaches to go unabated.
2.2) The applicant is only one of a number of small sub-companies with very limited financial assets and a large accruement of financial liabilities meaning that the margin for unexpected costs is very small to say the least. Should there be a major incident at the site then this company would not have the ability to deal with it, whilst they have been formed in such a way that the company could easily dissolve and leave the site without impacting on any of their other sub-companies, and leaving the directors not liable for any repercussions. I therefore question whether the land owner has been made aware that the liability would fall to him to deal with the aftermath of any incident, or even for any future pollution incidents from a capped well should the drilling operation conclude without issue. I also question whether the South Downs National Park Authority would be able to make right repairs to the roads as a result of inappropriate use by numerous Heavy Goods Vehicles in association with the application.
2.3) The applicant at no point makes mention of what chemicals would be used and so the Planning Committee are in effect determining this application with no awareness as to the full details of the proposed operation. I understand that current planning regulations mean that the Authority can only assume that the other regulatory bodies will perform their duties without fault, but it is still not appropriate for the Authority to potentially permit this application whilst not knowing the full extent of it. The Authority has a duty of care to the residents of West Sussex in a way that the other bodies do not necessarily have and so to sign off an application whilst not knowing what substances would be used would show a disregard of this duty.
2.4) Similarly, the applicants at this stage are only stating that the chemicals to be used would be non-toxic or household chemicals. However, I wish to remind the Planning Committee that Cuadrilla also made these exact same claims at Balcombe, but have been found through Freedom of Information Act requests to have used large quantities of hydrochloric acid and ethylene oxide, both of which have potential to cause harm to water-based organisms as well as to human health – particularly the ethylene oxide. It was also revealed that Cuadrilla had wanted to use antimony trioxide, but was thankfully refused permission. Ethylene Oxide and Antimony Trioxide are certainly not non-toxic or household chemicals and neither are the extremely large volumes or concentration of hydrochloric acid used, and therefore claims to the contrary can only be seen as attempts to appease those in the early stages of the planning process.
2.5) Pre-Application Discussions
2.5.1) A Freedom of Information Act request response (WSCC Ref. No. 613) on 31st October 2013 has revealed that “Officers and elected representatives [Councillors] have met with Cuadrilla and Celtique several times before and during the application processes to discuss proposals…Celtique has undertaken pre-application discussions with WSCC officers as part of their process of Alternative Site Assessments (i.e. identifying potential sites for oil/gas exploration, then meeting with WSCC planners, ecologists, landscape officers, archaeologists and highway officers to garner views)…Officers met with Celtique on 9 February 2012 to discuss site options. Written pre-application responses (confidential) were provided by WSCC on 1 and 3 July 2013…A further meeting with members [Councillors] and planning officers from both WSCC and the South Downs National Park Authority was held on 30 July 2013 to discuss the impending applications at Wisborough Green and Fernhurst.”
2.5.2) This clearly shows that, as happens often with planning applications, the applicants have been permitted several private audiences with Planning Authority members and staff. I have been provided with a copy of Celtique’s Briefing Document handed to West Sussex County Council (WSCC) and South Downs National Park Authority (SDNPA) members at the above referenced joint meeting held on 30 July 2013. This document emphasises the concerns of numerous objectors regarding the company’s workforce size and abilities. In this document it says “[Celtique] Employs 30 members of full-time staff and longstanding consultants covering specialist areas” thereby highlighting the fact that Celtique do not drill nor operate well sites, but rather sub-contract to other organisations. Celtique’s small workforce of 30 staff, including consultants, would indicate that they also lack the ability to effectively manage and monitor sites to ensure that all regulations and safeguards are implemented appropriately – again, this will be down to sub-
contractors (namely two full-time site managers working alternate twelve-hour shifts) to ensure that no problems arise and that the other sub-contractors are operating machinery, equipment and chemicals to the highest standard that Celtique would have us believe in this application.
2.5.3) The document also states that at their consultation event for the Kirdford and Wisborough Green site, 40% of responses at the time did not agree that this site was an appropriate location to drill, compared to only 34% that did agree. For Fernhurst, this feeling that West Sussex residents on the whole are not in favour of hydrocarbon extraction in the County continues with 57% disagreeing that the site is appropriate compared to only 28% that did agree. Clearly Celtique do not have a social license from these communities.
2.5.4) The quoted extract at paragraph 2.5.1 above also highlights the fact that Celtique have been actively engaging WSCC Councillors and Officers and South Downs National Park Authority members in various departments to discuss potential drilling sites. Clearly these discussions have resulted in three locations (that we know of – WSCC refuse to disclose the names of the other locations that have been investigated by Celtique), namely Broadford Bridge, Wisborough Green/Kirdford and Fernhurst. For these three sites to have been selected, WSCC and/or South Downs National Park Authority must have given Celtique some indication that they were potentially acceptable sites and would have a good chance of gaining successful planning permission. This clearly puts the local communities and Parish Councils at a disadvantage when it comes to assessing applications.
2.6) Celtique Finances
2.6.1) Several objectors have highlighted the fact that Celtique has questionable financial support and that the company certainly does not have the financial capability to deal with a serious incident at one of their well sites. This particular applicant, Celtique Energie Weald Ltd, as at the year ending 31st worth of £-2,613,021 and total liabilities of £3,148,738. As has also been pointed out, Celtique is part of a conglomeration of six separate companies all trading under the Celtique name and all sharing the same directors (Celtique Energie Ltd, Celtique Vaud Ltd, Celtique Energie Weald Ltd, Celtique Energie Petroleum Ltd, Celtique East Midlands Ltd, Celtique Energie Holdings Ltd). The total combined liabilities amounts to some £11,564,164 as at 31st submitted accounts, the trend is clear that for Celtique Energie Weald Ltd, as well as several other of its sister companies, as Net Company Worth has declined substantially (by over £2,580,000 since 2010), the Total Liabilities have equally risen (by over £2,760,000 since 2010). Clearly the applicant is not in the position to be able to deal with any incident that might arise at the proposed Fernhurst site or equally at any of its other sites such as nearby Wisborough Green. The cost of any such incident, and the liability to deal with it, would fall upon the landowners, including WSCC as the Highways Authority and the South Downs National Park Authority.
2.7) Invalidation Issues
2.7.1) Further to all my above listed objections to the Application, upon examination of the Application Form, I consider that the Application is invalid owing to a defective Article 12 Certificate. I have therefore attached a separate Letter of Challenge to the South Downs National Park Authority at the end of this objection, further detailing these invalidity issues.
I would lastly like to suggest that the South Downs National Park Authority perhaps takes the advice of Jenny Massingham, Celtique’s very own Planning Advisor, that she posted on her ‘Pinterest’ website:
“Never base your life decisions on advice received from people who don’t have to live with the results.”
P.S. - I reserve the right to add to or otherwise amend my comments at a later date, up to and including the date of determination.
Matters being challenged:
(1) The decision taken by the South Downs National Park Authority (“the Authority”) to treat Planning Application number SDNP/13/05896/CM (“the Application”) as “valid” for the purposes of Article 12 of the Town and Country Planning (Development Management) Procedure Order 2010
(2) Alternatively, the failure of the Authority to treat the Application as “invalid” for the purposes of Article 12 of the Town and Country Planning (Development Management) Procedure Order 2010
(3) The Authority’s ongoing entertainment of the Application, despite the prohibition on doing so in s.65(5) and s.327A of the Town and Country Planning Act 1990.
The applicant has failed to submit with the Application Form the Certificate required under Article 12, because the certificate chosen – Certificate of Ownership C - does not list valid entities for the apparent landowners, that is to say an individual or a Limited Company registered at Companies House. In the circumstances, the application submitted fails to consist in the Certificate required under Article 12, and the application ought to have been treated as “invalid” under s.65(5) and s.327A of the Town and Country Planning Act 1990.
In all the circumstances, the Authority ought to have notified the applicant that the Application was “invalid”.
Further, in all the circumstances, the Authority was (and is) actually prohibited from entertaining this application at all by s.65(5) and s.327A of the Town and Country Planning Act 1990.
What is more, given the errors in the application form and Article 12 as to the identities of various parties, one can have no confidence that the applicant has given notice of the Application to all owners of any land to which the application relates.
Accordingly, the Certificate is inaccurate as a matter of fact and the Authority cannot lawfully determine the Application one way or the other. If the Authority either ignores a defect in an Article 12 Certificate or is unaware of this defect and proceeds to determine the Application and grant planning permission, then any permission granted would be invalid and can be quashed by the High Court if any person(s) aggrieved by the granting of planning permission brought judicial review proceedings.
(a) To undertake, in accordance with s.65(5) and s.327A, not to entertain the Application any further.
(b) To notify those who submitted the Application that, having considered the application and accompanying documents properly, the Authority considers that the application is actually invalid.
An incorrectly submitted Article 12 Certificate cannot be remedied by a simple amendment to, or submission of, a fresh Certificate. UK Planning Law requires that where any person(s) and/or registered Limited Companies other than the applicant is owner of the land in question, then notice of the intent to submit an application must be made to all landowners before the submission of the application. Unless this notice has been given before the date of the submission of the application, an applicant, therefore, could not truthfully or accurately complete an alternative Certificate. The only remedy is thus to invalidate the application. Even if all the landowners are aware of and support an application, an incorrect Article 12 Certificate would still enable an aggrieved third party to begin judicial review proceedings to quash the decision of a Local Planning Authority if it should proceed to determine the Application and grant permission, whether or not it done so knowingly or willingly. Therefore, since the Authority have now been notified of the defective Article 12 Certificate, for it to continue to entertain the Application would be to do so knowingly and willingly in contradiction to s.65(5) and s.327A unless the Application is declared invalid and the applicant asked to withdraw it.
Furthermore, on the attached Sheet 3 of the Application Form, the two main landowners are combined into the same entry. This is again a defect in the Application (aside from the fact that the list of alleged landowners are not stated on the Certificate correctly), since in UK Law, individual people are separate legal entities from one another. A legal entity to be named on a Certificate must be either an individual or a registered Limited Company and not a grouping of two or more individuals or companies. The argument that the two persons listed are family members is void for this same reason as explained above and it cannot therefore be certain that all landowners were given the required notice of the Application prior to its submission.
For your information and to reinforce my argument, I will quote directly from the “Best Practice Guidance on the Validation of Planning Applications” document. Page 10 of this Government produced document states, under the section entitled “Ownership Certificates” that:
“Under section 65(5) of the Town and Country Planning Act 1990, read in conjunction with section 5 of the GDPO, the LPA must not entertain an application for planning permission unless the relevant certificates concerning the ownership of the application site have been completed.”
On page 17 of the document, under the heading “Acknowledgement and Invalidation of Applications”, it is stated that:
“Article 5(2) of the GDPO 1995 describes when an acknowledgment of the application must be sent to the applicant. Where, after sending such an acknowledgment, the LPA considers that the application is invalid by reason of a failure to comply with the requirements of regulation 3 of the Applications Regulations 1988, or article 4 of the GDPO or any other statutory requirement (eg the direction made under regulation 4 of the Applications Regulations 1988 in the authority’s SPD) they must as soon as reasonably practical notify the applicant that the application is invalid: article 5(4) GDPO 1995.”
I appreciate that the Application is made invalid purely on a technicality, but that does not excuse the fact that it is invalid, and for the Authority to continue to entertain the Application, and/or proceed to determine the Application would be unlawful and gives ground to the decision being quashed at Judicial Review by an aggrieved third party. I trust the Application will now be labelled ‘Invalid’ and withdrawn at the soonest possible moment.