Fracking may be a possible solution to UK Energy security, but at the cost of some age old landowner property rights.

The highly controversial method of extracting shale gas or oil, is also triggering controversial Government Land Law proposals.  In a consultation paper called “Underground Drilling Access”, the Government proposes a change to the concept of landowners’ ownership of land from the heavens to the bowels of the earth (unless reserved elsewhere): this presumption would be made subject to a statutory right of access in terms of fracking. This will assist fracking companies to avoid local opposition to their plans, by landowners alleging trespass if a company accesses their land, albeit at subterranean depths.  The concept of trespass will be removed in relation to shale gas and deep geothermal operations below 300m (1,000 ft).

The consultation proposes that rather than landowners solely receiving monies, a payment will be made by a fracking company, being a “voluntary community payment” of £20,000 per lateral well.

Companies will still have to negotiate rights for access at the surface with a landowner.  So, whilst such landowners may receive payments, those along the route may only benefit from the community payment.

Critics point out that current oil and gas industries do not need these powers.

This variation of law fractures a longstanding property right for a particular reason.  However, once the Government produces this right for fracking companies, it leaves an age old right open to exploitation by other industries and scenarios.

The Government argues that the reality is that below 300 metres, landowners would not readily be able to exploit the minerals under their land anyway.

National Security energy problems may be solved by fracking, but at the cost of the loss of an age old right in that scenario.  It is a topic for another day, but thought also needs to be given to possible environmental issues.  Landowners should not be held liable for environmental issues, caused by actions on their land by fracking companies.

The consultation can be found at (https://www.gov.uk/government/consultations/underground-drilling-access).  Make your views known: it closes on 15 August 2014.