On 23 May 2014, the Department of Energy and Climate Change (DECC) published a consultation on proposals for securing underground access for the extraction of gas, oil or geothermal energy, along with an underground drilling factsheet.

The consultation, which closes on 15 August 2014, aims to simplify the current procedure for obtaining landowner consent to drill beneath private land in a move to assist the development of the shale gas and oil and deep geothermal industries.

The existing system of access to underground land requires access rights to be agreed with every landowner where underground drilling is proposed, regardless of depth.  Access without necessary landowner consent would constitute trespass. There is a statutory process for seeking grant of access via the Courts, which would be available for shale gas, but this is time consuming, could delay projects by a number of years and has been rarely used in the case of petroleum. There is no shale-gas specific precedent due to the emerging stage of the industry. So a single landowner who refused to agree access could delay or induce changes to a project. In the case of geothermal energy there is no statutory access process.

The Government considers that this existing situation does not strike the right balance between the interests of landowners and the benefits to the community and nation at large of enabling development.

There are three elements to the government’s solution:

  • the right of underground access to land below 300 metres from the surface for companies involved in the exploration and production of petroleum and geothermal energy;
  • the establishment of a voluntary payment systemto pay affected communities a lump sum of £20,000 for each unique horizontal well extending over 200 metres; and
  • he establishment of a voluntary public notification system to inform communities about the affected land and payment details.

The new right of underground access would not be dependent on the developer having obtained all necessary planning and environmental permissions in order to commence drilling.

Companies will still need to obtain the permission of landowners to gain access at the surface, and to drill down to 300 meters.

Payment under the voluntary system would be to a relevant community body rather than individual landowners.

While the government is supportive of the voluntary payment system put forward by the industry, they will have a reserve power to set up a statutory scheme if necessary. However, if this reserve power is used, another consultation would be held to consider such regulations.  

The proposals cover England, Scotland and Wales, with the devolved administrations in Scotland and Wales being consulted regarding the geothermal energy applications. As petroleum and deep geothermal energy are transferred matters in Northern Ireland, the government is holding discussions with the executive regarding the possibility of extending these proposals.

The consultation and underground drilling factsheet can be found here