Part I

Petroleum

Onshore hydraulic fracturing: safeguards
4A
1
The
OGA
must not issue a well consent
for a well situated in the English onshore area
that is required by an onshore licence for England or Wales unless the well consent imposes—
a
a condition which prohibits associated hydraulic fracturing from taking place in land at a depth of less than 1000 metres; and
b
a condition which prohibits associated hydraulic fracturing from taking place in land at a depth of 1000 metres or more unless the licensee has the Secretary of State's consent for it to take place (a “hydraulic fracturing consent”).
1A
The Welsh Ministers must not issue a well consent for a well situated in the Welsh onshore area that is required by an onshore licence for England or Wales unless the well consent imposes—
a
a condition that prohibits associated hydraulic fracturing from taking place in land at a depth of less than 1000 metres; and
b
a condition that prohibits associated hydraulic fracturing from taking place in land at a depth of 1000 metres or more unless the licensee has the Welsh Ministers' consent for it to take place (a “hydraulic fracturing consent”).
2
A hydraulic fracturing consent is not to be issued unless an application for its issue is made by, or on behalf of, the licensee.
3
Where an application is made
to the Secretary of State
, the Secretary of State may not issue a hydraulic fracturing consent unless the Secretary of State—
a
is satisfied that—
i
the conditions in column 1 of the following table are met, and
ii
the conditions in subsection (6) are met, and
b
is otherwise satisfied that it is appropriate to issue the consent.
3A
Where an application is made to the Welsh Ministers, the Welsh Ministers may not issue a hydraulic fracturing consent unless—
a
they are satisfied that—
i
the conditions in column 1 of the following table are met, and
ii
the conditions in subsection (6) are met, and
b
they are otherwise satisfied that it is appropriate to issue the consent.
4
The existence of a document of the kind mentioned in column 2 of the table in this section is sufficient for the Secretary of State
or the Welsh Ministers
to be satisfied that the condition to which that document relates is met.
5
But the absence of such a document does not prevent the Secretary of State
or the Welsh Ministers
from being satisfied that that condition is met.
Column 1: conditions | Column 2: documents
1 | The environmental impact of the development which includes the relevant well has been taken into account by the local planning authority | A notice given by the local planning authority that the environmental information was taken into account in deciding to grant the relevant planning permission
2 | Appropriate arrangements have been made for the independent inspection of the integrity of the relevant well | A certificate given by the Health and Safety Executive that it— (a) has received a well notification under regulation 6 of the Borehole Sites and Operations Regulations 1995, (b) has received the information required by regulation 19 of the Offshore Installations and Wells (Design and Construction, etc. ) Regulations 1996, and (c) has visited the site of the relevant well
3 | The level of methane in groundwater has, or will have, been monitored in the period of 12 months before the associated hydraulic fracturing begins | An environmental permit has been given by the relevant environmental regulator which contains a condition that requires compliance with a waste management plan which provides for monitoring of the level of methane in groundwater in the period of 12 months before the associated hydraulic fracturing begins
4 | Appropriate arrangements have been made for the monitoring of emissions of methane into the air | An environmental permit which contains a condition requiring compliance with a waste management plan which provides for the monitoring of emissions of methane into the air for the period of the permit
5 | The associated hydraulic fracturing will not take place within protected groundwater source areas | A decision document given by the relevant environmental regulator (in connection with an environmental permit) which indicates that the associated hydraulic fracturing will not take place within protected groundwater source areas
6 | The associated hydraulic fracturing will not take place within other protected areas | A notice given by the local planning authority that the area in respect of which the relevant planning permission has been granted does not include any land which is within any other protected areas
7 | In considering an application for the relevant planning permission, the local planning authority has (where material) taken into account the cumulative effects of— (a) that application, and (b) other applications relating to exploitation of onshore petroleum obtainable by hydraulic fracturing | A notice given by the local planning authority that it has taken into account those cumulative effects
8 | The substances used, or expected to be used, in associated hydraulic fracturing— (a) are approved, or (b) are subject to approval, by the relevant environmental regulator | An environmental permit has been given by the relevant environmental regulator which contains a condition that requires substances used in associated hydraulic fracturing to be approved by that regulator
9 | In considering an application for the relevant planning permission, the local planning authority has considered whether to impose a restoration condition in relation to that development | A notice given by the local planning authority that it has considered whether to impose such a condition
10 | The relevant undertaker has been consulted before grant of the relevant planning permission | A notice given by the local planning authority that the relevant undertaker has been consulted
11 | The public was given notice of the application for the relevant planning permission | A notice given by the local planning authority which confirms that the applicant for the relevant planning permission has certified that public notification requirements, as set out in a development order, have been met
6
The conditions mentioned in subsection (3)(a)(ii) are—
a
that appropriate arrangements have been made for the publication of the results of the monitoring referred to in condition 4 in the table;
b
that a scheme is in place to provide financial or other benefit for the local area.
7
A hydraulic fracturing consent may be issued subject to any conditions
thought to be appropriate by the Secretary of State or the Welsh Ministers
.
8
A breach of such a condition is to be treated as if it were a breach of a condition of a well consent.
Pt. 1 modified (13.11.2009 for specified purposes) by Energy Act 2008 (c. 32), ss. 15(3), 110(2); S.I. 2009/2809, art. 2 (with art. 4)
Ss. 4A, 4B inserted (E.W.) (30.7.2015 for the insertion of s. 4B(4)-(7), 6.4.2016 in so far as not already in force) by Infrastructure Act 2015 (c. 7), ss. 50, 57(7)(c); S.I. 2015/1576, reg. 2; S.I. 2016/455, reg. 2
Word in s. 4A(1) substituted (1.10.2016) by The Petroleum (Transfer of Functions) Regulations 2016 (S.I. 2016/898), regs. 1(2), 13(3) (with reg. 2)
S. 4A(1A) inserted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(3) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)
S. 4A(3A) inserted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(5) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)
Words in s. 4A(1) inserted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(2) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)
Words in s. 4A(3) inserted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(4) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)
Words in s. 4A(4)(5) inserted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(6) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)
Words in s. 4A(7) substituted (1.10.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 16(7) (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 4(b)