Help stop changes to the way access to land is acquired for fracking

no fracking

Tessa recently sent this message to people who have contacted her before about environmental matters.

“As you have contacted me before about environmental matters, I hope you do not mind if I write to update you further on some proposals which relate to Hydraulic Fracturing, known as ‘fracking’, in our part of Somerset, and to ask again for your help.

You may be aware that last month, the Government announced plans to encourage investment in and increase the competitiveness of the UK’s energy infrastructure.

The wording used in the Queen’s Speech was as follows:

“My government will introduce a bill to bolster investment in infrastructure and reform planning law to improve economic competitiveness. The bill will enhance the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites and maximising North Sea resources.”

This would have come as no surprise, as David Cameron is on record stating his intention to “go all out for shale”.

I am firmly opposed to fracking, for which exploration sites have been identified across Somerset and in particular, on the Mendip Hills.  I have asked the Department for Energy & Climate Change (DECC) for clarification about exactly what meaning is intended by the words above.  I await the detailed response, but in the meantime, it has become clear that this relates to plans to change the laws of trespass on accessing underground gas and oil deposits, and geothermal energy.

I believe we should be moving away from – not increasing – our use of fossil fuels, which contribute to global warming.  Truly renewable sources like solar, tidal and wind, combined with designing and building homes and commercial buildings to a ‘green’ specification, and focussing on much greater energy efficiency are, in my opinion, the answers.

I have a number of concerns about the basis for any proposals to change the trespass laws in order to streamline the underground access regime so as to make it easier for companies holding petroleum licences to drill and frack for shale gas at depth beneath other people’s land and property.

In my view, the proposal to change the law of trespass strikes at the heart of a fundamental principle of liberalism: the relationship between the individual and the state.  The law of trespass originated in English Common Law during the thirteenth century and protects the owner of land from intrusion by another.  Trespass to land does not require proof of damage for it to be actionable.  The ancient definition of ‘land’ in this context refers to ownership “extending up to the heavens and to the depths of the earth”.  Plainly, this is not used literally today as there are limitations set by the practicalities of modern life – such as air travel – which means the definition can no longer be applied in exact terms.  However, the description offers a starting point from which any situation can be assessed against the general principles.

I recognise that energy security and the energy ‘gap’ is a cause for concern and am aware that exceptions to the law of trespass were made under the Coal Industry Act 1994, which automatically gives licensed coal operators the right of access under land for the purpose of coal mining operations, without any requirement to provide payment or compensation to landowners affected.  Having considered the suggestion that Ministers are seeking parity for shale gas fracking and oil drilling with coal mining, I have concluded that it would be more appropriate to amend Section 51 of the Coal Industry Act 1994 to reverse the situation, and to bring the rights of those affected by that Act back in line with Common Law, whereby permission has to be sought from the landowner.  This happens commonly with rights of access for our utility companies.

It seems extraordinary to me that geothermal energy has been ‘grouped’ with fracking for shale gas and drilling for oil in the proposals to exploit resources on or under land and property.

Firstly, geothermal sources are usually accessed vertically below or in close proximity to the beneficiary’s land or property, whereas shale gas fracking involves the need to drill horizontally over long distances, almost always involving drilling beneath other owners’ properties.

Secondly, there are significant differences between the processes used to extract oil and gas from the earth, and the process used for harnessing geothermal energy.  Geothermal energy is produced using a ‘closed loop’ borehole, meaning nothing is added and nothing is taken away during the process of extracting and utilising the ambient temperature in the ground.  Drilling for oil or fracking for shale gas, however, involves pumping hundreds of chemicals and millions of gallons of water into and out of the ground, which is intrusive, highly disruptive and potentially hazardous.

One of the benefits to my post as Chair of an Energy and Climate Change Committee shadowing DECC in Parliament is regular access to Ministers, the people who shape the legislation on which MPs vote. I can assure you that I never waste an opportunity to fight Somerset’s corner on matters such as this.  Judging from my email inbox, postbag and conversations with local residents, opposition to fracking unites people across the usual political divides.  Tellingly, this is one of the most common issues raised by young people I meet in local schools, colleges and out and about.  I have passed concerns about fracking on to Ministers and expressed local people’s disquiet whenever the opportunity has arisen.

There are steps you can take to help me push the point against changing the trespass law.  Some dismiss Government consultations as box-ticking exercises – however, I know from experience that they can and do make a difference to the policy-making process.

I would ask you to make sure your voice is heard by responding with your thoughts.  The consultation asks just six questions, three of which are below, and can be found here http://tinyurl.com/olau6cr:

 

  • Should the Government legislate to provide underground access to gas, oil and geothermal developers below 300 metres?
  • If you do not believe the Government should legislate for underground access, do you have a preferred alternative solution?
  • Should a payment and notification for access be administered through the voluntary scheme proposed by industry?

The consultation will be open until Friday 15th August 2014, at which point DECC officials will analyse the responses and report to DECC Ministers.  Once that analysis has been considered, and any resultant action agreed across Government, Ministers will announce the next step, which may be a new clause or clauses to change the law of trespass, using the Infrastructure Bill as the vehicle to make any such changes.

To explain the process involved, the Infrastructure Bill is about to be discussed line by line in Committee in the House of Lords over six days, starting on Thursday 3rd July.  What follows that is the House of Lords’ Report stage, when detailed examination continues over three days, commencing in mid-October.  It is expected that any new clauses would be introduced at this stage, after which the Third Reading in the Lords takes place, probably in early November.  The Bill will then transfer to the House of Commons and at that point, MPs consider the Bill and any Lords’ amendments.

So the Infrastructure Bill has a number of stages to pass through before MPs start to debate it at the end of this year, and are then asked to vote on it.  Between now and then, Ministers will decide the Government’s position on any changes to the law of trespass depending on, amongst other aspects, the outcome of the public consultation and any negotiations stemming from that.   We can all influence the result of the Government consultation by responding before 15th August.

What is clear is that our coalition partners are hell bent on fracking across the English countryside.  The reality is that without public pressure and a consequent change of heart from David Cameron, he will be pushing his plans to ease the way for fracking.

I am hopeful that the views of the progressive majority who value our landscape and this beautiful part of the country can win through.  My priority as your MP is to do what is best for the people of Somerset, present and future.  Although I do not know on what I am going to be asked to vote, I will not be supporting any change to the laws of trespass to enable fracking to take place more easily, and will not be voting for any such change if that is the Government’s eventual position.   I shall use what influence I have in the months ahead to work from within the Government to try to prevent any such change of policy.

For your information, as a long-standing member of Greenpeace and Friends of the Earth, I have signed their petitions online at: http://tinyurl.com/paot55g & http://tinyurl.com/o5zhnxr and would invite you to do the same, if you haven’t already.  However, as I have already explained, the most important thing you can do to help is to respond to the public consultation over the next six weeks.

May I therefore urge you to contribute to the consultation, sign the petitions and highlight your actions to your friends and neighbours.  If you would like to copy me into your consultation response, please do so.  Please make your voice heard whilst we have time.

Kind regards,

Tessa”

July 1st 2014

2 Responses to “Help stop changes to the way access to land is acquired for fracking”

  1. Martin Veart says:

    Tessa, I will make several points.

    1) You are correct. Renewables should be the priority for the UK. It seems though that the British public are against ANY form of development of the countryside. The Conservatives are pandering to this by promising a ban on further onshore windfarm development if they win power after the next election.
    Research and development of renewable energy, combined with government subsidy of improving the energy efficiency of our homes and places of work, should be a priority. Perhaps the stamp-duty tax and business rates of properties could be tweaked to reflect the energy efficiencies of properties, as well as giving positive support to make buildings more energy efficient.

    2) In my view, and in the view of the British Geological Survey, 300m is too shallow. In a paper cited in my block entry on fracking, the BGS says that prospects under 1000m should not be explored and developed. Although some prospects in the UK come into this zone, most are between depths of 1000 and 3000m. I am against development above this depth and the law of access should reflect that safety margin.

    3) You state that hydrocarbons should be left in the ground to reduce greenhouse gas emissions. True, but that is not happening. Coal is currently supplying 30% of UK energy, and those figures are rising, thanks to cheap imports from the US. Surely it is better to exploit cleaner gas reserves and leave the coal in the ground?

    4) It is interesting that you mention the Coal Industry Act. This provides precedent under the law.
    Can any individual really claim ownership of the ground over a mile below their property? Similarly, if we owned the sky above our houses, an overflying aircraft would equally be guilty of trespass. It is important that legislations does recognise damage and the level of evidence should not be criminal (beyond all reasonable doubt) but rather civil, on the balance of probabilities. A civil body, perhaps advised by the BGS, should be set up to independently evaluate any complaint. This should be funded by a levy on exploration companies involved in onshore activities.

    5) Energy security. One just has to remember this simple fact. Since the late 1990s, levels in production of both oil and gas from the UK sector have fallen by two-thirds. Please see my blog for a graph based upon DECC production figures.
    What is clear is that Britain’s main focus should be making good on this shortfall. We are currently a net energy importer and this situation is projected only to get worse in the next decade. http://www.fraw.org.uk/publications/e-series/e03/e03-uk_balance.png

    To summarise.
    I am all for government subsidy into renewable energy and energy saving in our nation’s buildings. We should investigate methods of taxation that reward responsible owners and disadvantage those who make no effort to improve their properties.
    1000m should be the minimum depth of development, not the 300m cited in the proposed law.
    In order to further decrease greenhouse gas emissions, usage of coal to generate electricity should be completely phased out as soon as possible.
    Precedent for the proposed law already exists. An independent body, advised by the BGS, should be set up to evaluate damage claims. This body should be funded by a levy on the energy companies.
    The status-quo is not tenable. If we do nothing as a nation, refuse to develop the opportunities open to us, we are effectively washing our hands of the matter and in importing more energy, we are paying cash to export the problem and our responsibilities.

  2. heidi boyce says:

    Tessa i strongly agree with you. we dont want Fracking on our beautiful mendip hills. i am worried about the long term environmental cost and impact of which is an unknown entity. you have my support with this cause… regards Heidi

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