Fracking rules enshrined in law

The Infrastructure Act 2015 came into force on 12 February.

Shale gas developers now have a statutory right of underground drilling under people’s land without permission.

Keith Davidson at ELM Law looks at the options for landowners who are concerned about the impact of fracking.


Protecting property assets

Since fracking is still an emerging technique, uncertainties remain over the potential environmental effects and property damage risks.

Concerns for landowners include potential ground disturbance, structural damage, loss of property value, groundwater contamination and nuisance issue.

Watered down safeguards

When the Infrastructure Bill was debated in the House of Commons, a number of safeguards were agreed by Ministers. This originally included an outright ban on fracking in national parks and areas of outstanding beauty.

This was weakened by amendments in the House of Lords and the final legislation prohibits hydraulic fracturing within “protected areas” (not defined) and groundwater source protection zones (no definition of groundwater area).

Another last-minute change means that exploratory investigations may fall outside the legal protections of the Infrastructure Act. Hydraulic fracturing has been defined as having at least 1,000 cubic metres of fluid at each stage.

Many shale gas developers already have the necessary environmental permits. We can expect to see an increase in planning applications over the coming months.

Payment scheme for landowners

David Cameron has said he is in favour of "cash payments to householders" directly affected by fracking. We don’t know the details yet.

The Department of Energy and Climate Change will issue a consultation before issuing regulations for a payment scheme.

What are the options for landowners?

Landowners concerned about fracking in their area might consider doing the following:

  • commission a desk top energy search to find out if a planning application has been made
  • check that insurance policy wording covers earthquake damage, subsidence, flooding, diminution of value, loss of rent, business interruption and environmental clean up
  • consider whether a legal planning challenge can be made opposing the planning application or judicially reviewing the planning application granted
  • if satisfied with the level of risks involved, consider negotiating access rights for maximum compensation with the shale gas operator, ensuring that any such rights don't adversely affect easements, manorial rights or other mineral rights