Fracking and trespass laws

This month the Government confirmed its intention to change trespass laws. If the proposals get the go-ahead following the 12 week public consultation, those companies involved in the exploitation of shale gas and geothermal energy will no longer have to apply to court for permission to drill under private property. Whilst planning permission will still be required, the ability to drill without having to gain the owner’s permission will speed up the process, therefore significantly contributing to the UK’s future energy requirements and energy independence. So how will these changes work in practice and what are the issues businesses and property owners need to be aware of?

Existing land ownership rights
The controversial proposals bring current regulation surrounding land ownership and trespass laws to the fore. Generally, freehold land ownership entitles the owner rights over their land at the surface and, in theory, to the centre of the earth beneath it. Various rights and restrictions may already be imposed over land and noted upon the title, for example, excluding mines and minerals below a certain depth, easements or restrictive covenants imposed. As shale gas and geothermal energy operators will require access to large areas of land underground, they would need to negotiate access rights with all affected land owners. Drilling without permission or a court order would be a trespass regardless of whether damage or loss to the land owner has arisen.

A statutory right of access can be obtained under section 7 of the Petroleum Act 1998 for shale gas operators (but not geothermal operators) if the land owners refuse consent, cannot be found or are too numerous to negotiate with. The operator has to apply to the Secretary of State, who consults with the affected parties and refers the matter to the High Court to make an order granting access upon terms that the Court considers appropriate. It has been a tactic of environmental campaigners, notably near Heathrow, to purchase an acre plot and sub-divide it into small parcels and sell on to potentially thousands of new owners. Each owner would then need to be contacted for consent creating an increased cost and administrative burden in order to obtain access, progress with a development or for compulsory purchase procedures to be followed.

Proposed changes under consultation
The Government proposals will allow a right of underground access to operators below 300 metres (approx. 1000 feet) from the surface. Therefore, the issue of trespass below this level would be removed. The Underground drilling factsheet issued with the consultation cites examples of domestic gas and electricity pipes are at 1m, the deepest London Underground station is 32m, the Channel Tunnel is 75m and the deepest UK coal mine is 800m.

A payment would be made to the local community of £20,000 for each well that extended more than 200m laterally. It would be to a community body, not split between land owners. The community would be notified via a voluntary public notification by the operator outlining the relevant area affected by the development and details of the payment to be made. The current law would apply for any works above 300m. The consultation closes on 15 August 2014.

While the proposed changes to trespass laws will certainly be welcome news to the shale gas and oil industry, the public is likely to be less enthusiastic. In view of the well publicised environmental concerns, including the risk of contamination by the potentially harmful chemicals used and, of course, the concerns regarding earth tremors and stability of property, it is not surprising that the Government is undertaking a public consultation on these plans. The Government’s message that they wish to accelerate fracking indicates that one way or another, these changes are likely to become law.

This content is correct at time of publication