Government outlines fracking trespass law changes

Controversial plans to prevent landowners from holding up shale gas projects by changing trespass laws to allow fracking firms to drill under homes without the owner's permission have been published for consultation.

Anti-fracking demonstration
Anti-fracking demonstration

The consultation, published today by the Department of Energy and Climate Change (DECC), proposes to grant underground access rights to companies extracting petroleum or geothermal energy in land at least 300 metres below the surface.

DECC said in a statement that the current process in relation to underground access gives a single landowner the power to significantly delay a development regardless of how others in their community feel about it.

According to the consultation document, the starting principle of land ownership in the UK is that freehold land entitles the owner to rights at the surface and down to the centre of the earth.

Consequently, it said, a company wishing to carry out underground operations might have to pass through land belonging to a number of owners. If the firm fails to obtain the landowner's permission to do so, they will have committed a trespass.

The document said that, currently, operators must negotiate these rights of access with every landowner living above underground drilling, even though these works occur far beneath the surface level.

"Given that a large area of underground land may be accessed in shale or geothermal operations, companies may need to negotiate access rights with hundreds of possibly even thousands of land owners whose land is above that area," the consultation said.

The consultation proposes a "public notification system", under which shale gas firms would outline matters such as the "relevant area of underground land, coupled with details on the payment that will be made in return for the access".

A survey carried out earlier this month by online pollster YouGov found that 74 per cent of the British public opposed the controversial move.

The consultation also says that the government believes that people living above underground drilling should receive compensation from the operator in return for the right of access.

It says that the government supports a voluntary offer for a payment system put forward by the shale and geothermal industries.

The proposed system would involve a £20,000 one-off payment for "each unique lateral (horizontal) well that extends by more than 200 metres laterally". The government's preference is for this payment to be made to a relevant community body and not split between individual landowners, according to the consultation document.

Catherine Howard, a senior associate at law firm Herbert Smith Freehills, said the change which would see shale gas operators no longer needing to reach agreement with the numerous owners of underground land which will be drilled and fractured from a well pad.
Howard said: "The change in law would remove one of the main obstacles to investor confidence. At present the only way operators can use underground land for fracking is to obtain the consent of all land owners above, or apply to court for the grant of compulsory rights under the protracted Mines (Working Facilities and Support) Act 1966 procedure.

"It is unlikely that any shale gas operator would attempt to go through this process, as the cost and time delay would be prohibitive."

Consultation on Underground Drilling Access is available here.

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