Fracking has become highly controversial for a number of reasons, with concerns around the environmental impact of this activity, access rights and ownership of the minerals.
Fracking is a technique used to recover gas and oil from shale rock. Shale gas reserves have been identified across large parts of the UK, and are especially common in northern England – meaning that a significant number of UK properties could potentially be affected by fracking on and under their land.
In the UK, horizontal fracking is generally used – drilling down into the earth before a high-pressure mixture, made of water, chemicals and sand is directed at the rock to release the gas. This means that while the vertical drilling may happen in one location, the fracturing of the shale rock may occur under another person’s land.
The result is that even if an energy company does not need to enter your land to begin the fracking process, the pipes required to transport the vast quantities of water to the fracking site may extend below your land.
There’s also a concern that the fracking process can cause small earth tremors. In May 2011, the first UK exploration for shale gas using fracking was suspended in Lancashire after the process triggered two minor earthquakes.
For these reasons that landowners and others with rights over land are objecting to fracking taking place on their land. Who has rights over land and the minerals within it?
Manorial rights and mineral rights
Lords of the manor were initially expected to profit from fracking due to ‘manorial rights’.
Manors are self-contained areas with their own customs and rights. Manorial rights are rights that are part of the manorial title and were usually kept by the lord of the manor when selling parts of the land.
Manorial rights can cover rights to mines or minerals, sporting rights (to engage in pursuits such as hunting), among other things.
Previously, under the Land Registration Act 2002, manorial rights were ‘overriding interests’—a landowner would buy land subject to these interests, even if they were not included on the land register.
But since 13 October 2013, the ‘overriding status’ of manorial rights has been removed to make sure that all matters affecting property are clear from inspection of the land register.
If you are the owner of a manorial right, you’ll need to register your interest against the title to a property to make sure you keep your rights to minerals and mining.
This can be done by unilateral notice for registered land, or a caution against first registration for unregistered land. A notice will protect your manorial rights from losing their ‘overriding status’.
If the property you’re seeking to register against has been sold since October 2013, you’ll be unable to register your rights.
If you are unsure whether you have a manorial right or whether land you own is subject to a manorial right, you should consult with a solicitor experienced in property law.
What are the lord’s mineral rights?
The lord of the manor can have mine and mineral rights below the manorial land. However, even if you own mineral rights, this doesn’t mean you have the right to access them.
As the mineral owner, if you want to get to and extract the minerals, you’ll have to gain the permission of the landowner to enter the land.
If you believe that a drilling company will interfere with your manorial rights, you should contact the drilling company before operations begin to agree compensation for this loss.
Should negotiations fail or prove impractical, you can apply to the court for injunctive relief if and when it becomes apparent that fracking is likely to cause such a loss. You should seek a solicitor who can advise you on your claim and any other options available to you.
If it’s unclear whether the fracking will interfere with your manorial rights or cause you a loss before they begin, you can seek compensation by agreement or damages through the courts after operations commence.
You may think that, as owner of the mineral rights, you also own the shale gas and will have to be compensated for the fracking.
But, gas, oil and coal have been vested in the Crown since 1934. This means that if any of these are found under property, they belong to the Crown, leaving the landowner with minimal powers.
The extraction of shale gas can also disturb the minerals around the gas. If these minerals are covered by your manorial rights, you can charge for a licence to disturb these minerals.
If a company wants to extract the shale gas by fracking, they will need to go through a number of stages.
First, the operators must bid for a Petroleum Exploration and Development Licence, an exclusive right to a certain area.
Second, the companies must obtain a number of permissions, including the permission of the landowner and planning permission.
If, as lord of the manor, you also own the land, then the operator must agree access to the land and compensation with you.
If the lord of the manor doesn’t own the land, then the operator must deal with the landowner too.
Can I stop fracking on my land?
In the past, the landowner could make a claim of trespass if the fracking company entered the land to dig, without consent.
The UK Supreme Court in Star Energy Basin Ltd v Bocardo (2010) held that a fracking operator would be committing trespass unless he had received permission from the landowner to drill underneath their land.
However, horizontal fracking means that while the vertical drilling may happen in one location, the fracturing of the shale rock may occur under another person’s land.
Partly in order to prevent landowners from claiming a trespass had occurred if they couldn’t agree to a deal with the fracking operator, the government introduced the Infrastructure Act 2015.
Since the introduction of the Act, tracking operators now have the statutory right to drill under your property at a depth of 300 metres or more (under section 43).
If the company wants to frack shale gas up to a depth of 300 metres, they will still require the consent of the landowner. They will also be required to obtain the consent of the landowner to access the land at the surface.
Take legal advice if you are facing a fracking issue
As a landowner, you will need to deal with the fracking operator.
If you do not own the land, but are lord of the manor, the best course may be working with the landowner to come to an agreement with the operator.
If negotiations fail, you will be able to apply to the Court for injunctive relief if you believe that the tracking will cause a loss to your mineral rights.
You should consult a solicitor who can help you determine the best route to take for your situation.
Unfortunately, there’s no right to compensation for individual landowners.
However, the industry has made a voluntary commitment to notify local communities of the tracking works and to make payments of £20,000 for each horizontal well which extends by more than 200 metres.
Under section 45 to 47 of the Infrastructure Act, the Secretary of State has the power to bring forward regulations if the notification and payments are not made.
Some companies have already made fracking compensation payments. In late 2017, energy company Cuadrilla confirmed that households living within 1km of the UK’s first commercial fracking operation were to receive about £2,000 each in compensation.
If you’re a lord of the manor or a landowner seek out advice from a solicitor on this complex and often emotive areas of law.