QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HALITE ENERGY GROUP LIMITED
|- and -
|THE SECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGE
Tim Mould QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 10th-11th December 2013
Crown Copyright ©
MRS JUSTICE PATTERSON :
i. That the Secretary of State misunderstood national policy at paragraph 2.8.9 of NPS EN-4;
ii. That the decision of the Secretary of State was taken on the basis of a material mistake of fact, was procedurally unfair and/or was irrational in concluding that he was "not persuaded" that Halite has complied with the requirements of EN-4 as regards provision of geological survey data;
iii. That the decision was procedurally unfair in concluding that "there is a significant possibility that either no development would be possible or the project as ultimately constructed would have a much smaller storage working capacity than has been envisaged in the application before the Secretary of State."
iv. That the decision was procedurally unfair in concluding that a certain type and/or level of geological information was a "pre-requisite" for an application for an underground gas storage facility under the Planning Act 2008;
v. That the decision was irrational in that the Secretary of State failed to set out adequate reasons for his conclusions including that he had "no convincing evidence in front of him as to the size of the project that might ultimately be constructed and hence is unable with any degree of certainty to consider the potential benefits, especially in respect of the need for infrastructure of this type, against the more clearly defined potential impacts." Although the Examining Authority addressed that by proposing a minimum storage capacity of at least 300 million cubic metres the Secretary of State found that he could not reasonably rely upon that as a basis for decision making.
- properly assess and ensure the geology of the area was capable of accommodating the proposed development;
- demonstrate its relationship to former solution mining activities or surface development,
- establish that there was no opportunity of migrating gas through the geology or via former mining activities.
It was refused also on the basis that the proposed development to the east of the estuary would result in the introduction of an industrial development which, by reason its scale, design and location would be detrimental to the quality of the open character of the countryside, coastal plane, estuary landscape and the Wyre way.
The Decision Letter
"9. The Secretary of State considers that, if the proposed Development were shown to be certainly capable of delivering a gas storage facility of the kind and scale which Halite hopes, it would be consistent with energy Overarching National Policy Statement EN-I ("EN-I") to grant it development consent (in the absence of any adverse impacts which made it unacceptable in planning terms), given the need for this type of Development and the contribution such projects can make to ensuring the UK's security of supply (Parts 3.8.8 -3.8.13 of EN-I refers)."
"13. In respect of the Examining Authority's findings and conclusions on the assessment of geological data (in particular ER 5.8-5.80) it is clear to the Secretary of State that there is significant uncertainty surrounding the two proposed potential cavern development areas, given the lack of hard geological data to demonstrate their suitability for underground gas storage.
14. The geological information provided in support of the Application is recognised by the Examining Authority to be insufficient for the purposes of National Policy Statement for Gas Supply Infrastructure and Gas and Oil Pipelines (EN-4) stating at ER 5.65, that "we consider that the geological analysis submitted as part of the application falls short of that required by NPS EN-4 to prove beyond reasonable doubt that the geological structure, thickness and faulting of the halite are suitable for the construction of caverns of the particular sizes and shapes within the specified areas and in order to support the volume of gas storage proposed for the application."
15. The Examining Authority provides some context to the lack of geological information regarding the proposed cavern areas, and the need for further geological surveys at ER 5.62 stating "Where detailed geological information is available, the Applicant has decided that the halite is too faulted or too close to existing workings to be suitable for safe construction and operation of UGS [Underground Gas Storage]. However, by the very nature of defining the proposed cavern development areas by avoiding known hazards, the polygons have been located in areas in which there is little geological data. The assumption that the polygon areas are therefore suitable for the cavern construction is based on extrapolation of data in the 3D model, and that the faulting does not extend into these areas. This may be entirely plausible, but in our view will only be confirmed beyond reasonable doubt as further geological surveys are carried out." This is further echoed at ER 5.9: "The two polygon areas are defined by the Applicant as areas that avoid known hazard zone of faults, boreholes and wet rock head and the mining hazards of solution brinewells and dry mining. This is the essential conundrum: these two areas do indeed avoid all known constraints, but are also areas where there is little hard geological data.
16. The Secretary of State notes the Examining Authority's view in ER 5.64 that 'The availability of geological data is nonetheless an improvement on that presented in the last planning application in 2009... ' However, the Examining Authority are also of the view in ER 5.65 that "the relatively small amount of additional geological data" consists largely of reinterpretation of geological information and, as indicated above, the geological analysis submitted as part of the application falls short of that required by NPS EN-4. Although the Secretary of State agrees the current application must be considered on its own merits, he also notes the Examining Authority's view in ER 5.66 that 'the technical assessor for the 2007 Public Inquiry recommended that at least two more seismic lines be undertaken and drilling and geophysical logging of boreholes on these lines to prove ground truth. In view of this and the subsequent failed planning application in January 2010, we are surprised that no seismic surveys were undertaken across the polygon areas to support this application...".
17. The Examining Authority's overall conclusion on the case for Development and recommendation that the Order be granted is therefore based on the proviso, that Halite "can demonstrate that the suitability of the salt in the two polygon areas is as high as it is assumed for the purposes of the application" (ER 7.27) and that development consent is made subject to "a major proviso concerning the procurement of more detailed geological data to confirm the ability of the two polygons to store substantial volumes of gas (ER 7.28).
18. The Examining Authority therefore sought to address the issue of geological uncertainty of the proposed storage areas by recommending inclusion in the draft Order of a requirement (on which commencement of the Development would be conditional) for Halite to carry out more comprehensive geological surveys post-approval (see ER 9.36 and draft Requirement 6(1) and (2) of Schedule 9 to the draft Order at Appendix D to the ER). The requirement would also make commencement of the Development conditional on the working capacity being shown by the assessment to be greater than "300 million standard cubic metres at the standard temperature and pressure" (which is half the working capacity envisaged by Halite).The Secretary of State notes that the Examining Authority considers that including such a condition "would meet the detailed assessment required under NPS EN-4 to confirm that the sites selected (i.e. the two polygons) are suitable, which in our view means they have sufficient thickness of un-faulted suitable halite to contain the proposed volumes of gas to be stored." (ER 9.24).
19. The Secretary of State does not however consider this approach to sufficiently satisfy the policy to be applied under EN-4 on which he places considerable weight. The requirement in Part 2.8.9 of EN-4 provides for example that "Applicants should undertake and supply to the IPC [i.e. the Infrastructure Planning Commission; now the Planning Inspectorate acting on behalf of the Secretary of State], a detailed geological assessment to demonstrate the suitability of the geology at the site for the type of underground gas storage proposed." Part 2.8.9 of EN-4 also states: "When considering storage in a salt cavity, the geological assessment should include depth below surface, salt thickness, salt purity and presence of shale bands which could affect cavern design. In addition, a study of the geological integrity of the overlying strata and potential for collapse, taking account of the proposed minimum and maximum working pressures, will need to be undertaken. The assessment should include the construction, operational and decommissioning phases and should cover the long term integrity of the affected strata after decommissioning or closure of the storage facility. The IPC will consider the geological assessment alongside the environmental assessment if the former does not form part of the [Environmental Statement]"
20. The Secretary of State is satisfied that, as stated in section 4.11 of NPS EN-I, an underground gas storage site would be subject to stringent safety standards covering the life cycle of a facility from design and build through to decommissioning under the Control of Major Accident Hazards (COMAH) Regulations 1999 and enforced by the Health and Safety Executive and Environment Agency jointly. However, in the absence of a pre application geological assessment as required by NPS EN-4, the suitability of the proposed underground gas storage project cannot be properly considered by the SoS - and may have also gone some way to contributing to local fears and opposition to the project."
"23. In his view, there is a clear gap in geological data contained in the application which means that Halite have failed to demonstrate the suitability of the geology at the site for salt cavern storage. The Secretary of State considers that the absence of such an essential element of the project bears heavily on his decision.
24. Whilst the Secretary of State notes that the Examining Authority's approach of including a requirement for further geological data would ensure that the suitability or otherwise of the proposed storage areas would be demonstrated prior to construction of the Development, he is mindful that, even if he were to make the Order on that basis, there is a significant possibility that either no development would be possible or the project as ultimately constructed could have a much smaller storage working capacity than has been envisaged in the Application before the Secretary of State.
25. It is not clear why Halite chose not to produce more detailed geological data for the site of the proposal but the Secretary of State considers that, in line with NPS EN-4, such information should be a prerequisite of an application for a gas storage facility made under the Planning Act 2008 and that failure to provide such information weighs significantly against the needs case for the project. The Secretary of State has no convincing evidence in front of him as to the size of the project that might ultimately be constructed and hence is unable with any degree of certainty to consider the potential benefits, especially in respect of the need for infrastructure of this type, against the more clearly defined potential impacts. Although the Examining Authority has attempted to redress this uncertainty by setting a minimum storage capacity which the project must meet before development would be allowed, they themselves admit that, despite their best efforts to offer a suitable minimum capacity figure, the proposed figure of 300 Mcm "is to some extent arbitrary" (ER 9.30). In the circumstances, the Secretary of State does not consider that he can reasonably rely on this assessment as a basis for decision-making.
26. In conclusion, the Secretary of State is not persuaded that Halite has complied with" the requirements of EN-4 as regards provision of geological survey data and considers that it would not be appropriate in this particular case to grant consent conditional on the provision of essential further evidence as to the suitability of the geology at the site after consent has been granted
27. He is unable to conclude that Halite has demonstrated that the geology of the site is suitable for this type of underground gas storage and has decided to refuse the Application and HSC Application accordingly."
"(3) The Panel or Council must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.
(4) This subsection applies if the Panel or Council is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.
(5) This subsection applies if the Panel or Council is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Panel or Council, or the Commission, being in breach of any duty imposed on it by or under any enactment.
(6) This subsection applies if the Panel or Council is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.
(7) This subsection applies if the Panel or Council is satisfied that the adverse impact of the proposed development would outweigh its benefits.
(8) This subsection applies if the Panel or Council is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met."
"In this area of public administration… policy statements should interpreted objectively in accordance with the language used, read as always in its proper context."
i. the National Policy Statement for Energy (EN-1) which is the overarching document; and
ii. the National Policy Statement for Gas Supply Infrastructure and Gas and Oil Pipelines (EN-4).
i. Was there a breach of natural justice in that the Claimant was treated unfairly?
ii. What is the proper interpretation of paragraph 2.8.9 of the EN-4?
iii. Was the decision of the Defendant irrational?
Ground One: Was there a breach of natural justice in that the Claimant was treated unfairly in the decision making process?
"52. The relevant law, though not cited to me, is to be found in cases such as Fairmount Investment Ltd. -v- The Secretary of State for the Environment  1 WLR 1255 at p.1266; and H. Sabey & Co. Ltd. -v- The Secretary of State for the Environment  1 All E.R. 586. Did the Claimant have a "fair crack of the whip?" Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair.
53. It is always difficult for parties to an Inquiry to know how far it is necessary to go in order to deal with the contingent ramifications of the process yet to be undertaken by an Inspector of analysing the arguments, accepting some in whole or in part and rejecting others. It is obviously helpful if an Inspector does flag up issues which the parties do not appear to have fully appreciated or explored. The point at which a failure to do so, amounts to a breach of the rules of natural justice and becomes unfair, is a question of degree, there being no general requirement for an inspector to reveal any provisional thinking. It involves a judgment being made as to what is fair or unfair in a particular case."
- "The feasibility, suitability and safety of the proposal to create up to 19 underground caverns for gas storage in the Preesall salt field by solution mining having regard to the previous uses of the area and the borehole and geological data presented with the application;
- The risk of gas migration and potential for subsidence arising from the specific construction technique proposed in the application and the potential concerns regarding seismic activity."
- "the GSR presents an adequate representation of the geology which is sufficiently well defined to establish areas in which caverns can be constructed by solution mining
- an indicative layout of caverns within two polygon areas has been prepared to fit within the defined areas
- the geology has been sufficiently defined for an analysis of the risks from gas migration to be assessed and surface subsidence to be calculated subject to confirmation by further drilling as the development proceeds
- the risk of seismic activity has been assessed as negligible
- the risks from historic salt abstraction have been assessed and will not impact on the proposed project
- an indicative cavern layout has been defined within the two polygon areas which have a working gas capacity of 600 Mcm."
"5.47 S0CG1 states that the two potential cavern development areas have been identified to avoid the hazard zones relative to the known geological hazards of faults, wet rack head and the mining hazards of solution brinewells and dry mining (SoCG1, paragraph 2.7.2). However, we note that although the polygons are located in areas which avoid known faults, at this stage in the development process there is no certainty that there are no faults within the polygons."
"5.54 The COMAH process is not a filling out of the principles of development authorised by the Order but is a separate regulatory process. We note that it is not for the Competent Authority to assess whether the two polygons would be capable of storing the total volume of gas which would be granted by the Order. We also note that the Order would enable the Applicant to begin construction of the supporting infrastructure for cavern washing (sea outfall, seawater pump station, booster pump station, river crossings etc), before the ability of the caverns to contain gas safely has been fully established and approved by the Competent Authority.
5.55 The relationship between the development to be consented by the Order and the detailed approvals given under COMAH Regulations has been a matter of concern to us particularly as the Applicant lays great stress on the integrity of the COMAH process in satisfying outstanding information and data needed to confirm the salt thickness and safety.
5.56 We held an IS hearing on 19 September 2012 to question the Competent Authority and the Applicant on these matters. Unfortunately, the HSE were not able to attend, but submitted a written statement which answered some of our questions (REP242 and REP244). The Applicant submitted four detailed papers on the COMAH process (REP243) which confirmed our understanding that approval of the pre-construction safety report would include detailed design of the caverns. This would take into account the geology of the caverns on a cavern by cavern basis.
5.57 The Applicant's view is that the data available regarding geology is suitable at this stage to enable development consent to be granted, and that further refinement of the geological model would be undertaken during the COMAH process (REP2O2, response to Q1/7(m)). At the IS hearing, the Applicant confirmed that additional geological investigations would be undertaken, which might include surface seismic surveys, prior to detailed design. These surveys might be undertaken on a cavern by cavern basis and the 3D model would be validated as the development progressed. Cavern development would start at the better geologically understood locations and proposals would be submitted for these to the Competent Authority for approval while the remaining caverns were being designed.
5.58 At the IS hearing, the Applicant also stated the intention to construct the outfall and the cavern washing facilities before starting construction of the caverns themselves. The decommissioning fund provided for in the s106 agreement is there to protect WBC in case the operator went into liquidation during construction. This reinforced the concern we have that the Applicant could construct the cavern washing infrastructure, brine outfall, etc, before the ability of the polygons to sustain the size of cavern development included in the Order is fully demonstrated.
5.59 We accept that there must be no duplication of the safety aspects which require approval under the COMAH Regulations. However, we consider that it is for us to determine, within the PA 2008, if there is a reasonable prospect on the basis of the data submitted that caverns could be constructed in the two polygons to retain the consented volume of gas, before the Competent Authority considers the safety issues."
"5.62 Where detailed geological information is available, the Applicant has decided that the halite is too faulted or too close to existing workings to be suitable for safe construction and operation of UGS. However, by the very nature of defining the two proposed cavern development areas by avoiding known hazards, the polygons have been located in areas in which there is little geological data. The assumption that the polygon areas are therefore suitable for the cavern construction is based on extrapolation of data in the 3D model, and that the faulting does not extend into these areas. This may be entirely plausible, but in our view will only be confirmed beyond reasonable doubt as further detailed geological surveys are carried out. "
"5.65 However, the relatively small amount of additional geological data consists largely of the reinterpretation of Burrows Marsh and Hay Nook Boreholes, reinterpretation of the seismic-reflection lines and alterations to the digital geological model. We consider that the geological analysis submitted as part of the application falls short of that required by NPS EN-4 to prove beyond reasonable doubt that the geological structure, thickness and faulting of the halite are suitable for the construction of caverns of the particular sizes and shapes within the specified areas in order to support the volume of gas storage proposed in the application."
"5.76 As stated in paragraph 5.25 above, our view is that if the interpretation of Hackensall Hall El Borehole is incorrect, then the 3D model may overestimate the thickness of halite available for UGS in the northern polygon by up to 120m. The consequence of this would mean that the Applicant would not be able to construct caverns of the height, volumes, or the maximum working pressure indicated in the GSR (APP37, section 6) Our own rough order of magnitude calculations show that a reduction in cavern height of caverns I to 6 could reduce the working volume of these six caverns by up to 60%. However, these caverns only provide 26% of the total working volume, and therefore this reduction would reduce the total working volume by only 15%. We consider that even in this event, such a reduction would be consistent with the maximum volume indicated in the application.
5.77 PWG dispute the depths to the top of the halite in the areas of proposed caverns 8, 10 and 11 in the northern polygon (REP17O, page 35). If their interpretation happens to be correct and the halite deposit is shallower than the model predicts, then the maximum operating pressure of the caverns will be lower than that designed and the available working volume will be reduced by approx 1%. We do not consider that this would represent a material variation.
5.78 However, if any of the faults shown in Canatxx Seismic Line G (see paragraph 5.45 above) extend into the southern polygon, one or more of the caverns may have to be excluded. This polygon would hold the largest of the proposed caverns and therefore the inability to construct a number of these caverns safely would materially impact on the total working gas volume achievable. For example, the loss of four of the largest caverns (15, 17, 18 and 19) which are in alignment with potential fault extensions would reduce the total working capacity by 35% (see APP37, table 6.3 for indicative cavern volumes). If, in extreme circumstances, all three scenarios occurred together, the total capacity could be reduced by over 50%. We consider that this would be a material variation in what the application is seeking, and we return to this matter in Chapter 9"
"7.6 We commend the Applicant's approach in drawing together all the existing geological material in the GSR which presents it in a comprehensive and intelligible manner. Adopting a sieve map technique of all known hazards to define two polygons free from such constraints where the construction of UGS caverns could take place is a logical methodology. However, the problem we kept coming back to is that the areas which are defined as a result of avoiding all known constraints are themselves areas where there is little hard data to confirm the Applicant's contention that these are devoid of any major geological difficulties, particularly faulting, which would otherwise preclude cavern construction. To deal with this uncertainty the Applicant has taken the approach of developing an indicative design giving the number, location and shape of individual UGS caverns which could be authorised by the Order, and which could then be firmed up in detail as better information subsequently became available.
7.7 To our minds, the major difficulty with this approach arises if the subsequent detailed geological surveys show that (in contrast to the assumptions made in the 3D model) the two polygon area for cavern development are faulted, and the application of the separation distances in Requirement 6 preclude the construction of several caverns. In turn, this might lead to a situation where the volume of gas that could be physically stored is substantially less than that being applied for. In this eventuality the requirements for surface infrastructure, particularly the GCC, might be significantly less than contained in the application before us. Although we accept this is highly improbable, in extremis neither of the two polygons might be capable of cavern construction at all if faulting turned out to be a much more serious presence than that currently forecast.
7.8 We note that the project construction programme is over 8 years, the first three years for the supporting infrastructure and 8 years of cavern construction. Indeed, the brine pipeline, outfall and the two main pump stations would need to be constructed before starting the first cavern, because these are needed to dissolve the salt, form the caverns and dispose of the brine. The GCC and gas interconnector pipeline would be constructed by year 3, when the first caverns are put into operation, and while other caverns are still under construction. We are concerned that on this intended programme it is entirely feasible that all of the supporting infrastructure would be constructed before sufficient data was available to determine whether the design volumes for gas storage could be met in the polygons. Although there are provisions for decommissioning in such a situation of abandonment, the consequence would be unnecessary disruption for local people during construction and whilst the abortive surface infrastructure was being removed.
7.9 The main disbenefit of the proposal in our view is the visual impact of the GCC, despite the best endeavours of the Applicant to site it in a location where it would be screened to a substantial extent, coupled with the proposals for landscaping and mitigation in the LEMSP. If the volume of gas which could eventually be stored underground is substantially less than currently predicted, it could well be that a smaller GCC structure would be needed, and hence the impact of the current proposals on the landscape could have been reduced if not avoided entirely.
7.10 We have no direct evidence about the relationship of the facilities required at the GCC and the volume of gas stored. But it is unlikely to be a linear relationship, and certain fixed elements of the plant will be needed irrespective of how much actual gas is being transmitted. However, the ES and the Design and Access Statement suggest that the size of the GCC in the present application is considerably smaller than that proposed for previous applications which had a much larger volume of gas intended to be stored (APP17, paragraph 2.1.6 and APP29, paragraphs 3.55 and 5.4). For this reason, we think it reasonable to conclude that if the maximum volume of gas which could be stored was much lower than that proposed in the application, then it would be possible to reduce the size and scale of the GCC accordingly
7.11 Whilst recognising:
- that the application is for storage of gas up to a maximum working capacity of 600 Mcm
- the flexibility sought by the Applicant
- the nature of the interface between the development proposed to be approved by this Order and the subsequent detailed approvals within the COMAH Regulations
we conclude that reassurance is needed to put beyond reasonable doubt the suitability of the two polygons for construction of UGS caverns in the manner proposed to store at least a substantial proportion of the volume of gas for which the application is seeking approval. We consider that this is a step which should be taken immediately if the Order is confirmed as a prerequisite to construction of surface infrastructure. Our recommendation about how this could be achieved by a modification to the Order is set out in Chapter 9."
"9.24 We do not accept the Applicant's point of view and consider that as detailed geological investigations are needed as part of submissions to the Competent Authority for approval under COMAH Regulations it is not an additional burden to provide them earlier in the process. To our minds this would meet the detailed assessment required under NPS EN-4 to confirm that the sites selected (i.e. the two polygons) are suitable, which in our view means they have sufficient thickness of un-faulted suitable halite to contain the proposed volumes of gas to be stored.
9.25 We consider that such a modification to Requirement 6 is justified, but that its formulation needs to concentrate on the development aspects of the application, and avoid any overlap with the responsibilities of the Competent Authority under the COMAH Regulations, as the Applicant fairly points out In this development context, paragraph 4.1.1(v) of NPS EN-I also requires that we consider the balance of the adverse impacts (including any cumulative adverse impacts) against the benefits of the proposed development (taking into account the measures to avoid, reduce or compensate for the adverse impacts).
9.26 We propose therefore that the criterion to be met in the first instance is a minimum volume of gas storage on the basis that if the geology cannot support such a level, then it throws into question some elements of the surface infrastructure which the application contains, and particularly the size of the GCC. We consider this reflects the landscape disbenefits of the application on the eastern side of the Estuary concerning the impact of the GCC, together with the residual adverse impacts we noted in Chapters 5 and 6 such as disruption during construction, noise from extended working at the Wyre Estuary crossings and fears in the community of safety aspects.
"(1) No stage of the authorised development shall commence until
(a) a geological survey of the "area for cavern development" shown on the approved development plan with reference A1000-030 Rev B has been carried out to confirm the top and bottom levels of the halite deposit and the presence of any faulting to a confidence limit of ±5 m;
(b) the working capacity of Work No 1A has been calculated taking account of the results of the geological survey and sub-paragraph 4 (a) to (h) of this requirement; and
(c) the results of the geological survey and the working capacity calculation have been submitted to and agreed by Lancashire County Council.
(2) No authorised development shall be carried out if the working capacity of Work No 1A as agreed by Lancashire County Council pursuant to sub-paragraph 1 (c) is less than 300 million standard cubic metres at the standard temperature and pressure.
(3) No more than 19 operational caverns with a total storage capacity of up to continue requirement 6 as drafted."
"The GSR presents an adequate representation of the geology which is sufficiently well defined to establish areas in which caverns can be constructed by solution mining. An indicative layout of caverns within the two polygon areas has been prepared to fit within the defined areas. The geology has been sufficiently defined for an analysis of the risk from gas migration to be assessed and surface substance to be calculated subject to confirmation by further drilling as the development proceeds. The risk of seismic activity has been assessed as negligible. The risk from historic salt abstraction have been assessed and will not impact on the proposed project. An indicative cavern layout has been defined within the polygon areas which have a working gas capacity of 600 million cubic metres."
"For land use planning, the applicant thought it was necessary to be able to demonstrate that 19 operational caverns, with a capacity of up 600 million standard cubic metres could be accommodated within the area that is to be granted consent through the development consent order. For that purpose they have identified a series of very conservative design separation parameters to demonstrate that even with those very conservation parameters you can, within the two polygons, get 19 caverns with 600 million standard cubic metres of gas because it seems to be that is a land use planning issue."
"LG: Okay, so if therefore the polygon in the north was substantially thinner which is one of the areas of debate as I am sure you know, than that actually has been assumed in the model- would that not affect the capability of getting the full volume that is required under the DCO?
CH: It would yes.
LG: It would. So it is feasible that if you started constructing caverns in areas where you are more confident that you may not be able to achieve the full volume?
CH: Yes, which is why it is probable that there will be further seismic surveys. I just didn't want to be too prescriptive now in saying that it will follow this way."
"Prior to the submission of the safety reports to the competent authority (pursuant to Regulation 7(1), 7(5) and 7(8) of the 1999 Regulations) such geological investigations as may be necessary shall be undertaken across the area for cavern development shown on the approved Development Plan with reference A-1000-030 REV B, and shall be submitted for approval by Lancashire County Council to confirm the top and bottom levels of the Halite bed to a confidence limit of plus or minus 5 metres, and that no faults of such size as may affect the integrity of the proposed caverns penetrate the Halite bed."
"In the GSR the proposed development of new caverns had been analysed with regard to the known geological mining hazards applying the industry acknowledged conservative Rokahr design recommendations. Three dimensional hazard mapping across the Preesall basin had been undertaken and detailed drawings produced to present areas suitable for safe cavern development. An indicative cavern field design comprising 19 caverns of varying diameter and height as determined from the three dimensional geological model with due regard to the minimum design recommendations that have been produced. A detailed volumetric and sensitivity analysis had been undertaken to determine potential cavern field working gas volumes. An average working class volume of about 560 million cubic metres was determined for the indicative cavern scheme. That had been calculated on a probability analysis. Cross sections had been produced through the proposed caverns indicating how capacity would be about 600 million cubic metres. "
"No more than 19 operational caverns, with total storage capacity of up to 900 million standard cubic metres and working capacity of up to 600 million standard cubic metres, both specified at the standard temperature and pressure, shall be constructed within the "area for cavern development" shown on the approved Development Plan with reference A-1000-030 Rev B."
"I return to a submission about need for the inspector to have adopted an inquisitorial role. No one suggests that an inspector is required to search for material not put before him. What the Dyason case establishes is that, when there is an informal hearing which, as a matter of procedure, normally excludes cross-examination, the inspector has to play an enhanced role in order to resolve conflicts of evidence. In addition, such an inspector must not arrive at a finding adverse to a party without having put the point to the party in question or his witness, and that is what happened in the Dyason case."
(i) Should the claimant have recognised that deficiencies in the geological data and its interplay with the COMAH regime had become an issue?
(ii) Did the ExA mislead themselves on the geological issues by requiring the claimant to demonstrate its position to too high a standard – beyond reasonable doubt – and act in a way that was unfair?
(iii) To what extent, if at all, did any deficiencies in the examination affect the defendant's ultimate decision?
Should the claimant have recognised the issue?
1. "Discussion and understanding of the powers to be provided by the order to govern the design of underground storage caverns: Article 3, the authorised developments work No 1A, approved development plans and R6(1).
2. Discussion and understanding of the constraints imposed by R6 as minimum standards and that no subsequent approvals concerned in cavern design are required from WBC pursuant to the order.
3. The intended design process for the caverns;
4. The programme of geological studies and surveys subsequent to the order and whether they were required by/approved by the HSE"
"Can I pick up on something you said? How would Wyre Borough Council actually know that you had exceeded the working gas volume? 19 caverns one could envisage because you could count the number of well heads, but the working gas volume was actually the parameter that is based on the gas pressure in the caverns. How would Wyre know? Is it something that COMAH would review and feedback to them?"
Did the ExA err and mislead itself on geological issues by requiring the Claimant to demonstrate the geological data to too high a standard and generally act unfairly?
Do the flaws on the part of the ExA affect the decision on the part of the defendant?
Ground Two: What is the proper interpretation of paragraph 2.8.9 of EN-4 ?
"Underground natural gas storage can take place in porous rock and in salt caverns, both on and offshore. The IPC is responsible for the consent of onshore natural gas storage facilities …"
"Natural gas can also be stored in manmade salt caverns. In some areas Britain has salt present in strata which are, or could be, suitable for gas storage. The most extensive areas, where suitable thick natural layers of salt are found, are in Northern England and in smaller areas further south."
"Applicants should undertake and supply to the IPC, a detailed geological assessment to demonstrate the suitability of the geology at the site for the type of underground gas proposed. When considering storage in porous rock, in a depleted or partially depleted oil or gas field or aquifer applicants should undertake a detailed geological assessment to determine suitability of the rocks for underground gas storage. When considering storage in a salt cavity, the geological assessment should include depth below surface, salt thickness, salt purity and presence of shale bands which could affect cavern design. In addition, a study of the geological integrity of the overlying strata and potential for collapse, taking account of the proposed minimum and maximum working pressures will need to be undertaken. The assessment should include construction, operational and decommissioning phases and should cover the long term integrity of the affected strata after decommissioning or closure of the storage facility. The IPC will consider the geological assessment alongside the environmental assessment if the former does not form part of the ES."
"The siting of gas storage facilities will also be influenced by safety considerations. Sections 4.12 and Section 2.5 of this NPS set out how the hazardous substances regime is applied to gas storage infrastructure."
"Applicants seeking to develop infrastructure subject to the COMAH regulations should make early contact with the Competent Authority. If a safety report is required it is important to discuss with the Competent Authority the type of information that should be provided at the design and development stage, and what form this should take. This will enable the Competent Authority to review as much information as possible before construction begins, in order to assess whether the inherent features of the design are sufficient to prevent, control and mitigate major accidents. The IPC should be satisfied that an assessment has been done where required and that the Competent Authority has assessed that it meets the safety objectives described above."
"In considering any proposed development, and in particular when weighing adverse impacts against its benefits, the IPC should take into account:
- Its potential benefits including its contribution to meeting the need for energy infrastructure, job creation and any long term or wider benefits; and
- Its potential adverse impacts, including any long term and cumulative adverse impacts, as well as measures to avoid, reduce or compensate for any adverse impacts."
Ground Three: Was the decision of the Secretary of State rational?
The table below lists the main 'events' occurring during the examination and the main procedural decisions taken by the Panel.
|24 April 2012||Preliminary Meeting|
|2 May 2012||Notice of procedural decision including confirmation of the examination timetable and first round of written questions from the Examining authority (ExA)|
|3 May 2012||Accompanied site visit to the application site|
|6 June 2012||Deadline for receipt of:
• Written representations
• Responses to written questions
• Local Impact Report (s) (LIRs)
• Statements of common ground (SoCG)
|4 July 2012||Deadline for receipt of comments on:
• Relevant and written representations
• Responses to the ExA's questions
|18 July 2012||Issue of the ExA's second round of written questions|
|24 July 2012||Issue specific (IS) hearing to consider the drafting aspects of the draft Development Consent Order, and the proposed agreement between the Applicant and local planning authorities under sl06 of the Town and Country Planning Act 1990|
|15 August 2012||Deadline for (i) responses to the ExA's second round of written questions and (ii) for interested parties to make representations to the ExA of the need for issue specific hearings|
|24 August 2012||Letter (Rule 17) from ExA to the Applicant and other specified IPs concerning the Conservation of Habitats and Species (Amendment) Regulations 2010|
|24 August 2012||Letter (Rule 17) from ExA to the Applicant and other specified interested parties concerning the Conservation of Habitats and Species (Amendment) Regulations 2010|
|24 August 2012||ExA notification of the programme for further IS hearings|
|24 August 2012||Deadline for the receipt of comments on responses to the ExA's second round of written questions|
|24 August 2012||Deadline for i) interested parties to notify the ExA of their intention to be heard at an open floor (OF) hearing and ii) affected persons to notify the ExA of their wish to be heard at a compulsory acquisition (CA) hearing|
|31 August 2012||Letter from the ExA confirming dates and arrangements for the CA hearing|
|6 September 2012||Letter from the ExA confirming dates and arrangements for the OF hearing|
|6 September 2012||Letter from the ExA confirming the arrangements and agenda for the IS hearings on 18 and 19 September|
|18 September 2012||IS hearing on drafting of the DCO and requirements, the draft deemed marine licence and proposed sl06 agreement|
|19 September 2012||IS hearing on the relationship between the Order and the COMAH Regulations|
|26 September 2012||Letter (Rule 17) from the ExA to the Applicant concerning Crown Land|
|26 September 2012||Further letter from the ExA setting out the agenda and arrangements for the CA hearing|
|28 September 2012||Letter (Rule 17) from the ExA to the Applicant and specified IPs inviting written representations about a proposed addition to Requirement 6 of the Order|
|2 October 2012||Letter from the ExA to the Applicant concerning proposed amendments to plans relating to the brine discharge outfall|
|3 October 2012||Letter (Rule 17) from ExA to the Applicant concerning Part 5 of the Book of Reference|
|3 October 2012||Letter (Rule 17) from the ExA to the Applicant concerning the draft Hazardous Substances Direction, preparation of the final draft DCO and a list of minor corrections to the Order|
|8 October 2012||Deadline for the submission of the final draft of the DCO and proposed sl06 agreement|
|9-10 October 2012||CA hearing (one session only held on 9 October)|
|11 October 2012||Letter (Rule 17) from the ExA to the Applicant concerning information requested at the CA hearing on 9 October, and further to the final draft DCO|
|17 - 18 October 2012||OF hearing (six sessions held over two days)|
|19 October 2012||Accompanied site visit to the application site|
|26 October 2012||Notification from the ExA of the completion of the examination.|