The current position

If you are the owner of freehold property in the UK, you are entitled not only to rights at the surface of the land, but also - theoretically - right down to the centre of the earth.

If a party drills beneath freehold land without the consent of the landowner or a court order granting the necessary rights, then this could be a trespass (Star Energy UK Onshore Ltd and Another v Bocardo SA [2009] EWCA Civ 579).

Operators that hold a petroleum exploration and development licence (“PEDL”) can obtain statutory rights of access in circumstances where landowners refuse to grant access, or a landowner cannot be found, or where there are too many landowners to negotiate with. This is granted under section 7 of the Petroleum Act 1998, which in turn applies the process in the Mines (Working Facilities and Support) Act 1966 to enable the PEDL operator to acquire rights of access which are needed to allow him to exercise his licence.

“If a party drills beneath freehold land without the consent of the landowner or a court order granting the necessary rights, then this could be a trepass...”

The proposed changes

Given the government’s commitment to encouraging unconventional gas extraction, proposals are being consulted upon which would remove restrictions on underground access, and streamline the process for operators. The consultation, launched in May 2014, which closed on 15 August 2014, contains the following proposals:

  1. Access: The introduction of a right of underground access for companies extracting petroleum (including shale gas) or geothermal energy in land at least 300 metres below the surface. 3km deep wells are not uncommon, which can also extend 3km laterally.
  2. Community compensation: Payments to be made to local communities in return for the right of access. A consultation will consider whether these should be voluntary or compulsory.
  3. Notification: Operators that require access below 300 metres would comply with a voluntary notification system, to inform the local community of the access required.

Shale gas extraction requires significant horizontal drilling (unlike,  in the main, conventional oil and gas), with wells being used intensively, and a number of lateral excavations made during their lifetime. The ability of operators to access resources which may be outside the footprint of the original well site is therefore vital. These proposals are also designed to remove the risk of ‘ransom strips’ being used to prevent commercial exploration.

Once the consultation is completed the Infrastructure Bill will include provisions to clarify and streamline the underground access regime.