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Special Digest

Government planning to undermine centuries-old landowner rights.


You may recall in an earlier special report "Could this kill off UK fracking?" the threat to fracking from legal land rights was discussed.

Now, it seems, the government has recognised this obstacle, and is planning an assault on the rights of landowners to know what is going on under their land. This could be a prelude to a change in land ownership law which would have serious repercussions for landowners and farmers.

On the 2nd of September the government issued for consultation a document "Revised requirements relating to planning applications for onshore oil and gas."

This proposes, amongst other measures, to make planning easier for the frackers, to remove any planning application requirement to notify a landowner whose land may be drilled under.

It will be recalled that horizontal drilling requires advance consent from such landowners (not just the owner of the land around the wellhead), without which the driller would be committing a trespass.

The new planning requirement would deprive owners of any advance information that their land could be drilled under. Unscrupulous operators could bypass the law and fail to enter into access arrangement discussions totally, and avoid paying landowners for underground wayleave rights. The government could therefore be seen to be encouraging the civil offence of trespass.

It is also suggested that "red line" plans should ignore any undergound activity and only need show the surface works around the actual drilling site (thereby also making planning applications cheaper for the frackers).

This would not only cut out information that might cause landowners to object, but reduce the apparent area potentially affected by the fracking, and reduce the scope of an environmental survey or impact assessment.

If landowners are not aware and do not object, this makes it more likely that consents will be given by the Mineral Planning Authority. Once planning permission is granted it will be far more difficult for landowners to take any further stand against having their land undermined. Their rights at law will have been prejudiced. And as we will continue to see with "temporary" planning applications, once permission is granted it is very difficult to oppose further applications to extend time limits or convert temporary permissions into permanent production permissions. The first "temporary" grant creates a strong precedent.

An alternative proposal suggested in the government's proposals is that the need to notify could be dependent on the depth of a horizontal drilling, ie a depth below which notification would not be required. This is contrary to the accepted principle that ownership rights below ground are not bound by depth. A 2010 Supreme Court judgement (Star Energy v Bocardo SA) dealt with this issue in detail and upheld the principle in spirit of the old brocard about owners having rights "to the centre of the earth". It can be reasonably expected that the new planning regulations will be a forerunner to new legal measures to change an ancient established principle. To do this for the simple reason of speeding up shale gas exploration, which will be in any event a short-term stopgap measure, would be an outrageous assault on established law and individual rights.

It might also be remembered that there has recently been a UN panel verdict that the UK government was in breach of the Aarhus Convention regarding its wind farm policy. The Convention stipulates standards in public information and participation in environmental matters. It may well be that if the government goes ahead it will be in conflict with not only UK land ownership law but the UN Convention. How can landowners (or the public) assess any potential environmental consequence of a planning application if they are not informed that the application plans to frack under the owner's land? Or under aquifers or sensitive enviromental areas. This would breach not only environmental convention but human rights.

This quote from the proposed new regulations is telling, particularly the final sentence, and confirms my view that the government sees the current situation as a major stumbling block, especially to the future of industrial-scale fracking - "Extraction of the oil and gas takes place at a significant depth below the surface – most viable deposits of oil and gas in the UK are found at a depth of greater than 1km underground and unconventional hydrocarbons deeper still. Wells are drilled vertically to reach the geological layer where lateral drilling may take place. At such depths the wells that are drilled are between 6-12 inches in diameter, and there are controls in place to ensure that there should not be any surface impacts (outside the area where the oil and gas is brought to the surface, stored and then moved off-site).
Extraction of the oil and gas takes place over a significant underground area, involving multiple landowners and/or agricultural tenancies."

This clearly states the reason for the government's plan. It wants to facilitate fracking regardless of objections that anyone may lawfully have. It rates expediency over the law.

Further, as we are very aware, there are NOT controls in place to prevent fracking affecting the environment or surface impacts. The scientific basis for this statement of safety is non-existent. Professor Richard Davies of Durham University concluded it was prudent to have a vertical depth of 1.2 kilometers below not only the surface, but any aquifer at a shallower level. EU regulations require fracking fluis and waste to be contained within the target shale formation, but there is no UK regulator or monitoring capability to ensure this, and the Durham study on fracture lengths made it clear that fractures WILL extend beyond the shale formation even in the thick Bowland Shale, where Cuadrilla plan for stacked horizontal wells maybe three or four, to maximise the gas return. And from the US is is now patently clear that whatever the depth of drilling, there have been adverse effects on water wells, surface contamination and air pollution.

This government is making it clear that it will stop at nothing to force fracking through against the consent of the people, against the rights of law and in disregard of safety regulation for the industry. Fracking must NOT get a foothold in the UK.

Objection Summary –

The change proposed would deprive landowners and farmers of the right to know what is planned under their holding, a basic human right.
It would thus interfere with their ability to protect their legal rights, and the well-being of their property.
It would hide the true extent of a fracking application’s potential area of environmental impact, thereby interfering with the ability of the Mineral Planning Authority and the Environmental Agency to properly assess an application.
By hiding the true extent of potential impact area it would deprive landowners and the public of the right to voice objections at the planning stage on environmental grounds, in possible contravention of UN Aarhus Treaty on environmental and human rights.
It would make yet another financial concession to an industry which is already planned to benefit from significant tax breaks at the taxpayers’ expense.

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