Fracking firm calls in lawyers for possible court challenge to drilling snub
The Environment Minister could be facing a legal challenge after he decided not to allow a company to start exploring for shale gas.
Mark H Durkan refused to grant Tamboran Resources permission to drill a 750-metre deep exploratory borehole in a former quarry in Belcoo, Co Fermanagh.
Now the five-strong board of Tamboran Resources, who are based in Australia, are considering a judicial review of his decision.
They have already retained lawyers in Northern Ireland to advise them.
The lawyers are examining previous statements by Mr Durkan in which he expressed views about fracking, the controversial method by which gas would be extracted.
Fracking, or hydraulic fracturing, involves pumping liquid at high pressure into shale rock to extract natural gas trapped in it. Environmentalists believe it causes contamination of the water supply and earth tremors. Tamboran has not applied for a licence to frack and one could only be granted by the Department of Enterprise, Trade and Investment (DETI) where the DUP's Arlene Foster is minister.
However, shortly after he was appointed Mr Durkan pointed out that exploratory work would require permission from his department and stated that "as long as I am there, they will not be going through".
Last October, in answer to an Assembly question from the DUP's Sammy Wilson, Mr Durkan pledged "there will be no fracking on my watch".
In a court it could be argued that such statements suggested that Mr Durkan had already made his mind up before considering the evidence.
A statement from his department concedes that under current planning legislation there are certain permitted development rights in relation to mineral exploration, including drilling boreholes.
However, the minister argues that in this case the situation is complicated by the fact that the borehole would be drilled in a former quarry where there had been "unauthorised extraction". Last night the department declined to say what this extraction involved.
Mr Durkan argued that "as a result of the unauthorised activities on the site, I was concerned that there was not sufficient information to assess the environmental impact of drilling a borehole cumulatively with other possible environmental impacts of the unregulated activity."
As a result, he has asked the company to apply for full planning permission, a process that would take years. Its current exploration licence runs out in 2016.
In a judicial review it could argue that this is unreasonable. Another possible tactic would be to apply to drill somewhere where there had not been "unauthorised extraction". If permission was refused again that could strengthen Tamboran's case in court.
Last night Rosemary Craig, a law lecturer at the University of Ulster, said: "There has to be an appeal mechanism against the decisions of ministers and, from what is publicly known about this case, there seems to be reasonable grounds to apply for permission to hold a review.
"Tamboran could try to show that the minister had already taken a view before examining the case. It would be for the judge to decide if his decision was reasonable. The court might want to see any advice he had received indicating this was a special case."
Tamboran Resources is licensed by the Department of the Environment to explore for natural gas in Fermanagh and wants to drill for rock samples at a quarry in Belcoo. If the samples indicate there is enough gas to make it worthwhile, Tamboran could apply to the Executive for permission to extract it by hydraulic fracturing, better known as fracking. Often boreholes are permitted without a specific planning approval. But Mark H Durkan, the Environment Minister, has demanded a full planning application with an environmental impact assessment, a lengthy process.
What the minister has said
“There will be planning permissions required for any exploratory work and there will be serious scrutiny on these by my department and as long as I am there, they will not be going through.”
Londonderry Sentinel, July 2013
“The onus on any promoter of these schemes is to prove that they are safe and I have yet to be convinced that that is the case... Frack off.”
Belfast Telegraph, August 10 2013
“Do we need to extract shale gas? Can it be done safely? Would it be done responsibly? These are the responsible questions. All facts are not in. The scientific evidence is far from being established. No fracking for Fermanagh, no fracking for Northern Ireland, as things stand.”
Belfast Telegraph, August 14 2013
“What I said was that it would not happen on my watch easily, and I mean that well and truly. Any decision will require full scientific evidence. In my opinion, that scientific evidence is not there now, and I cannot see it being there in the foreseeable future. Therefore, I cannot see fracking happening on my watch.”
October 14 2013 at Stormont, in reply to a question from Sammy Wilson MLA
Minister risks setting precedent that will hold up development
By Liam Clarke
"If County Fermanagh is home to a significant natural gas resource that could provide Northern Ireland with decades of a local secure energy supply then we believe the people have a right to know."
Those are the words of Dr Tony Bazley, the UK director of Tamboran Resources, whose application to sink a borehole in Belcoo has been kicked into the long grass by Environment Minister Mark H Durkan. It is hard to argue with Dr Bazley's on this point at least.
In his statement, issued last month, he points out that this was not an application to frack. It is an application for a six-inch wide borehole to gather rock samples which could tell him how easy it might be to extract gas from the shale and what the likely impact of extraction would be.
This borehole would be 750 metres deep and to listen to some of the critics you would think that this was unheard of. In fact it is normal. Sammy Wilson of the DUP pointed out boreholes over 900m deep were sunk in his own East Antrim constituency to test whether it was safe and practical to construct underground caves to store natural gas.
In fact many major developments, such as out-of-town supermarkets, have to sink boreholes of similar depth to check against the possibility of subsidence or other effects. Deep boreholes are also sunk for wells.
They do not normally require special planning permission and Mr Durkan risks setting a precedent that will hold up development everywhere.
Boreholes are, in 'planner-speak', "permitted developments" unless there is reason to think that a particular location is especially hazardous.