Shale Gas and Oil Right of Access (UK)

Update: the Government’s Consultation Response (published 25th September 2014) is here.

My recent post identifying the Tort of Trespass which restricts or prevents access is here.

The Tort of Trespass exists in Common Law.

In summary – ownership of property gives ownership of the strata beneath the surface of the land (in the absence of any express or implied alienation), and therefore prima facie possession of them. Installing pipelines or other intrusions is therefore a trespass; but, if it does not interfere with the owner’s enjoyment of his land, damages will be low. This was last tested in Star Energy UK Onshore UK Limited Bocardo S A.

In this case a trespass was found even though under the Petroleum (Production) Act 1934, all petrol in strata in Great Britain belongs to the Crown (the State), and the Crown is able to grant licences to bore for and get petroleum, which it had done.

The UK Government is now consulting on proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy.

The consultation examines the existing procedures by which companies who wish to extract oil, gas or geothermal energy obtain access to underground land, and the problems raised by these procedures.

The consultation sets out the policy position in relation to underground access rights for shale and geothermal operations.

The policy contains three elements: Access rights, Payments for access, and Notification of Access.

Here is the UK Government Factsheet.

The consultation document is here.

Consultation ends 15th August 2014.

The Government’s preferred solution is presented, which consists of three elements: an underground right of access below 300m, a voluntary payment from industry and a notification for access. The voluntary payment would be supported by a statutory reserve power in the case that industry defaulted on their arrangement. Notification would be made in the form of public announcements to the community in question.

This solution would be implemented in legislation.

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