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There has been a media storm around fracking recently. What is the reality?

27 February 2014

With the national debate around fracking heating up, and the press in particular playing on the worst fears of property owners, what is all the fuss about and what are your rights if a developer wants to frack under your property?

Fracking activity is expanding. Last month, French energy firm Total announced it will invest over £12m in fracking in the UK, and this month Cuadrilla announced two new exploration sites in Lancashire. 

David Cameron recently urged the public to 'get on board' with fracking. The government is not only changing the law to make it harder for landowners to prevent fracking, it is also offering financial incentives to the authorities that make it happen.  

What is fracking?

Fracking, or hydraulic fracturing, involves drilling into the earth and forcing high-pressure liquid (usually a mixture of water, sand and other chemicals) into the ground to fracture the rocks, releasing the shale gas they contain. Drilling to carry out fracking is done both vertically and horizontally.

No notice need be given!

Previously, landowners affected by underground fracking operations would be notified of planning applications submitted. Last month the government removed the need for notice to be given. This means you may only find out about a planning application for fracking under your land if you see a site notice or advertisement in a local paper.

Only minimal compensation awarded so far…

Under the Petroleum Act 1998, any petroleum deposits (including shale gas) under your land belong to the Crown. The landowner owns any subsurface strata around the shale gas, which means that fracking cannot take place under your land without your consent. 

Developers who carry out fracking under your land without your consent will be committing trespass. To prevent a trespass or to stop a trespass that is occurring, a landowner can apply to the courts for an injunction. The courts however, have been reluctant to grant injunctions and have only awarded minimal damages in these cases. 

Beware the rights of the developer!

Developers can apply to the government to grant them the right to frack under land if the necessary consent cannot be obtained through negotiation. This can be done if the landowners:

  • are too numerous or have conflicting interests
  • cannot be established or found
  • cannot give consent (for example because they do not have the necessary rights over their land)
  • have unreasonably refused to give permission or made unreasonable demands.

If the government is satisfied that the developer has put forward a good case, it will refer the application to the High Court, which can grant the developer the right to frack for however long and on whatever terms it considers appropriate.      

Safety in numbers?

The BBC reported earlier this month that in the South Downs National Park an exploratory drilling site has run into difficulty - five of the six landowners affected have refused permission to allow drilling under their land.

One of the landowners is concerned about water contamination, noise pollution and additional traffic. This could be an interesting case if it reaches the courts, as we may see whether environmental concerns are reasonable grounds for refusing permission.

It will be interesting to see how the courts view any concerns relating to the wider environmental impact, and not just the impact on the landowner's land. 

Keeping local authorities sweet

David Cameron announced that local authorities that permit fracking can keep 100% of the business rates generated (double the amount they can usually keep). The government thinks, on average, this will be worth about £1.7m per site to the authority. At a time of cuts to local authority budgets, this may serve as a powerful incentive.

A free-for-all in the future?

The Department for Energy and Climate Change is considering whether trespass laws should be changed so that a landowner's consent is not required for fracking under their land. It is not yet known how this will work in practice and what compensation might be available to affected landowners. A consultation is expected later this year, and we will update you as soon as we hear anything!

This article was written by Mark Smith.

For more information please contact Mark on +44 (0)20 7427 6722 or mark.smith@crsblaw.com.