Fracking: Government plan to abolish rights

Ministers are understood to be planning to take away property-owners' rights to stop energy companies 'fracking' beneath their homes.

At present it amounts to trespass to carry out drilling beneath the surface of a property without the owner's consent. But the government is now considering changing the law to make it easier for companies to drill for shale gas - the process usually known as fracking.

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Some property lawyers see this as a major attack on home owners' property rights. But will it make any difference in practice?

It is generally stated that in English law a property title is deemed to extend 'up to heaven above and down to hell below' - of course that definition dates from medieval times when the earth was believed to be flat with heaven a short distance above it and the flames of hell just below!

This statement of law has been widely upheld in many old cases. So anyone intruding into the airspace above a property or burrowing beneath it without the owner's consent is committing trespass.

The question is whether the old law still applies in this day and age. The simple notion that each landowner is the proprietor of a column or cone of land that stretches down to the centre of the earth and upwards indefinitely into outer space is plainly no longer tenable.

For instance, can a landowner claim damages if a plane flies over his property? The answer is - probably not, he can only claim ownership to a height reasonably necessary for the ordinary use and enjoyment of his property.

But a landowner can certainly take action to stop a crane-jib over-sailing his property without permission, even if the jib is not causing any actual damage.

It has always been generally agreed that mining under land without the surface-owner's consent is trespass, unless the person carrying out the mining is entitled to do so.

Minerals under land are often owned separately from the surface. It was common for the landed gentry to sell off land for building but retain ownership of the minerals beneath the land together with the right to work them.

These mineral rights could then be sold to a mining company who could tunnel beneath the houses on the surface without needing the householders' consent.

Fracking involves drilling a vertical hole into the gas-bearing shale rock, and then drilling horizontal boreholes at depth into the shale. A mixture of chemicals and water is then pumped under pressure into these boreholes which causes the adjoining rock to fracture and release the natural gas.

It is quite possible that these horizontal boreholes will run beneath people's homes. However they are likely to be a mile or more below the surface. The question then arises as to whether the old law of trespass still applies to drilling operations so far below the surface of the land.

In 2010 the UK Supreme Court looked at a case where an oil company had drilled into land in order to extract oil. In order to extract the maximum amount they had drilled sideways into land that was not directly beneath the well-head, without the consent of the owner of this land.

The boreholes were at depths of 900 or more feet below the surface and they had no effect on the owner's use and enjoyment of the surface of the land. The court agreed that although the drilling did amount to trespass, as it not interfere with the enjoyment of the land, any damages would be minimal (under £100).

Although an energy company requires a government licence to carry out exploratory drilling they also still require a homeowner's permission before carrying out the drilling beneath a property in order to avoid being guilty of trespass. Owners who object can go to court to apply for compensation for interference with their rights.

However owners who are concerned about the potential effects of fracking on their homes, not to mention the effect on property values, may feel that they have more to gain by trying to obtain an injunction to prohibit drilling beneath their property.

The government has already made it clear that it wants energy companies to go ahead exploiting reserves of shale-gas by fracking as quickly as possible. So it seems quite likely that minsters will now try to abolish property-owners rights as far as possible if they think such rights could be used to stop fracking taking place.

Presumably this will mean amending the law to say that fracking operations beneath land will not constitute trespass in future.

Landowners in the UK do not stand to make anything out of gas or oil extraction beneath their property. All oil and gas has long been vested in the state, which grants licences to companies for exploration and extraction. Landowners are not entitled to any royalties or other payments for this.

However having an exploration licence does not entitle companies to enter onto the surface of anyone's land to start drilling operations without permission. In practice the companies negotiate a lease or similar agreement with a landowner and pay a rent to allow occupation.

If a company finds gas and wants to start extraction then it could apply for ancillary rights under the Mines (Working Facilities And Support) Act 1966.Such rights could include the right to drill and extract gas beneath peoples' property.

Although the 1966 Act appears more relevant to mining for coal and similar minerals it can also extend to proposed fracking operations. The courts would have to be persuaded that the grant of such rights is expedient in the national interest. No doubt the government will argue that this is the case!

Landowners may be able to take legal action against unauthorised entry beneath their land at present. But it looks unlikely that this state of affairs will continue for much longer if the government gets its way.

Owners who want to stop fracking beneath their land will therefore either have to try and bring political pressure to bear or (as seems more likely) indulge in the sort of protest action that we have already seen at Balcombe and elsewhere!