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Published: 28 October 2016
Sector: Energy

Fracking protests – a landowner’s guide

A recent spate of planning decisions looks set to accelerate the adoption of commercial-scale fracking in the UK. With shale gas extraction firmly back on the agenda for UK energy companies, the coming months will likely prompt an eruption of protests from anti-fracking campaigners.

Martin Edwards, real estate disputes specialist, tells you what you need to know…

Background

In recent news, Britain's government has approved its second-ever shale gas fracking permit, which is designed to boost the country's position as Europe's most promising shale gas exploration ground. Shale gas company, Cuadrilla, has been given the go-ahead to carry out hydraulic fracturing, or ‘fracking’, at a site in northwest England. Previously, Third Energy was granted the first approval of this kind since 2011, from a site near Kirby Misperton. As a result, firms will now look to begin exploratory drilling projects across the UK, At the end of last year the Government released new licenses covering huge areas of Nottinghamshire, Derbyshire and Yorkshire which could see oil and gas companies look to explore and extract shale gas and coal bed methane. A new licence was also issued covering the Isle of Wight.

Fracking is a hotly contested subject and one that attracts a lot of opposition, protesting and resistance and landowners can face hordes of protesterson their land seeking publicity for their anti fracking campaigns.

Who is responsible for protester demonstrations?

Unless a prior arrangement has been made with the exploration company, it is the sole responsibility of landowners to deal with any demonstrations on their land. Therefore landowners must ensure they are equipped and ready to react to any potential disputes.

Can you call the police to remove protesters from your land?

If a protest does ensue, unless there is evidence that a crime has been committed, i.e. criminal damage or aggravated trespass, it is unlikely that a call to the police will assist in the removal of protesters.

What can you do if protesters are on your land?

Landowners must obtain a Possession Order from the Court before they can take any steps to try to evict protesters trespassing on their land. It is important for landowners to take legal action as quickly as possible following any occupation as this is required under the Court rules.

What rights do protesters have?

In defending themselves against a possession order, protesters will most commonly invoke the European Convention on Human Rights (ECHR). More specifically, article 8 – right to respect for a person’s home, article 10 – freedom of expression and article 11 – freedom of assembly and association.
However, legal precedent in this area seems to suggest that claims of this nature are likely to be rejected by the court in favour of the legal rights of private landowners.

Can I get insurance to protect against protesters?

Although securing insurance against such eventualities is rarely a practical option, landowners should do what they can to secure appropriate indemnities from the exploration company against the cost of Court proceedings.

What are the rules for public land?

Crucially article 8 exemption does not apply to possession orders obtained on public land. For example, this could include land owned by a local authority, public verges or highways.

As such, private landowners who consider offering sites for test drilling would be well advised to select sites which are well within the boundaries of their own land and that are a safe distance away from public roads and neighbours – thus reducing the risk of disruption from any legal protests that may arise nearby.

Cost-Risk analysis is required

While agreeing to test drilling by energy companies may prove lucrative and reveal the presence of valuable gas reserves, landowners should be aware of these potential risks and financial costs associated with fracking protests.

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