One Further Step Towards UK Shale: Government Provides Underground Drilling Access for Developers | The National Law Review

In June this year we reported on the opening of the UK Government’s public consultation concerning its proposal for changes to the laws concerning underground drilling access in connection with projects involving shale drilling and fracking, as well as geothermal energy extraction.The existing UK legal framework dictates that mineral rights to petroleum belong to the Crown, with the Government issuing licences to operators to permit them to exploit those petroleum rights.  However, subject to those mineral rights in favour of the Crown, owners of freehold land have rights over their land both at surface level and down to the centre of the earth.  This means that after receiving a licence from the Government, an operator must also obtain the landowner’s permission in order to have access to and operate under privately owned land.  If an operator fails to obtain such permission it will be committing a trespass. Operators must therefore negotiate with individual landowners to secure underground access usually in return for a payment.  These negotiations can be protracted and there is currently no standardised approach.The Government’s public consultation proposed underground access legislation, pursuant to which:i operators would be permitted to drill below private land without first having to negotiate access rights, provided such drilling would be at depths of at least 300 metres.  Operators would still need to obtain any necessary consent to commence drilling but the right of access would not be dependent on landowner permission, thereby removing the issues relating to the law of trespass;ii operators would make a voluntary payment to the relevant local community body in return for the automatic right of access, and the Government would retain the right to enforce payment through regulation if the proposed voluntary scheme was not followed; andiii a voluntary notification system would be introduced to enable operators to notify the public, in particular the affected communities, of details of the relevant areas of underground land that would be accessed by drilling and the payments made in return for such access.The public consultation was open from 23 May to 15 August 2014 and received over 40,000 responses with 99% of respondents being opposed the proposed legislative amendments.  The Government has indicated that 90% of the total responses received did not respond to the specific consultation questions but instead used the consultation to voice objections to fracking and shale gas operations with nearly 29,000 of these responses submitting a template anti-fracking campaign text.With respect to the responses received from “stakeholder organisations” being respondents with national or regional presence, representative bodies, public sector bodies, locally elected bodies and bodies operating in relevant sectors including oil and gas, energy and law, 55% supported the proposed underground access legislation and 24% opposed to the changes.  The full break-down, by respondent, of the responses received to the consultation question of “should the Government legislate to provide underground access to gas, oil and geothermal developers below 300 metres?” is set out below:

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