02 Dec 2014

Comment: Fracking policy and local communities

Comment: Fracking policy and local communities


Fiona Wildgoose, Partner, discusses fracking policy and local communities.

Fracking, while providing an opportunity to produce electricity at almost half the CO2 emissions of coal, has been heavily criticised by local communities and environmental protection groups. The UK Government consultation on amending trespass laws to allow fracking under property without landowners consent has recently closed, bringing the issue back into the news once more.

From a legal perspective, the following should be borne in mind when considering the any potential impact of fracking to landowners;

Environment Protection Legislation

Under the Petroleum Act 1998, all of the United Kingdom’s petroleum resources belong to the Crown, however the government can grant licenses to look for and extract petroleum. The terms of these licences can include the drilling for and development of unconventional gas, subject to necessary consents and planning permissions.

The planning requirements are found in the Town and Country Planning (Scotland) Act 1997 and the Planning etc (Scotland) Act 2006. The Local Planning Authority is responsible for granting planning permission within its boundary. Each proposed site must also be assessed by the Scottish Environment Protection Agency (SEPA), who has guidance on drill sites discharging waste into the surrounding environment. In addition, an Environmental Impact Assessment may be required to be undertaken to determine the likely impacts of planned projects on the environment, particularly at the drilling, rather than exploratory stage in the process.

Rights of Access

Currently, licence holders do not have automatic access rights to drill under landowners’ property and permission is required from the landowner before they can do this. The landowner is entitled to compensation for any rights granted but this is limited to compensation for the disruption caused.

The UK Government consultation, which proposed to change access rights for licence holders to make it easier for them to drill and frack for shale gas, recently closed. Currently, if a landowner refused access, the licence holder could apply through the Secretary of State and the courts to be granted access. However, the UK Government’s new proposals were to:

  • Grant underground access rights to licence holders drilling at least 300 meters below the surface;
  • Implement a voluntary community payment of £20,000 for each well that extends by more than 200 meters horizontally. (It is suggested that this  payment becomes mandatory if licence holders do not volunteer); and
  • Introduce a public notification process, whereby a licence holder would set out drilling proposals and details of the voluntary payment.


This consultation has recently closed, with the vast majority of the respondents opposed to the proposals. The major concerns was about environmental damage, damage to property and resultant problems obtaining home insurance, as well as the more obvious concern about the impact on housing prices in affected areas.

The UK Government has recently announced that it plans to press ahead with the legislation. However, as the whole process hinges on the granting of planning permission, which lies firmly within the power of local authorities, it remains to be seen whether any resulting legislation will have a significant impact on local authorities with an engaged and vocally opposed local community.

The Department of Energy and Climate Change website has a map showing the areas covered by existing licenses. In addition the UK Government have published extensive explanatory documentation on the licencing arrangements, environmental impact and other implications of fracking.

Fiona Wildgoose, Partner

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