Fracking and trespass

UK government ministers through DECC are consulting about overhauling trespass laws to make it easier for energy companies to explore for shale gas, amid concern that efforts could otherwise be stymied by lengthy and costly court proceedings.

DECC says that the proposals outlined in the consultation will apply to England, Wales and Scotland in respect of petroleum (i.e. gas and oil). In respect of deep geothermal energy, the consultation also covers England, Wales and Scotland. However, the application of proposals on deep geothermal energy in Scotland and Wales will be the subject of consultation with the respective administrations. This is a complex area of jurisdiction under the Scotland Act with potential conflicts between the reserved powers over gas and oil as against planning and trespass laws that are devolved.

Currently, operators must negotiate these rights of access with every landowner living above underground drilling, even though those works occur far beneath the surface level – typically more than a mile down in the case of shale gas and oil or geothermal energy. They argue that the landowner is very unlikely to make use of the land at that depth, and the drilling activity itself is so far down that it will have no negative effect at the surface. 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 or possibly even thousands of land owners whose land is above that area.

Greenpeace UK director John Sauven said: “Having failed to reassure the country that fracking is safe, ministers now want to render people powerless to oppose it. There’s nothing fair or just about this underhand ploy to strip people of their legal right to say no to fracking under their homes.”

Ministers are also planning to increase additional payments in England to an average of £800,000 for communities affected by fracking. The announcement shows that the government accepts it must reach out to communities angered by its plan to deny homeowners the right to use trespass laws to contest fracking developments. The Scottish Government has indicated that it has no equivalent plans.

Despite the high profile campaigns against fracking, public opinion is not yet opposed in principle. Dr Rusi Jaspal from de Montfort University argues that the promise of cheap energy may outweigh the perceived risks. It is the case that support has declined since the siege of Balcombe and other high profile campaigns could have a further impact on public opinion. It would also be interesting to see if this support in general, translates into support for fracking in respondents own backyard! A good indication of the likely answer to this comes in a YouGov poll, which indicated that 74% were opposed to the government’s plans on trespass.

Of course, all of this depends on viable amounts of gas being available. The British Geological Survey has landed a big blow to ministers with their conclusion that “there is unlikely to be any shale-gas potential” in the Weald area of England. But that still leaves the ‘desolate’ north!




  • Posted in: Gas

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