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Avoiding trespass: Queen’s Speech supports oil and gas exploration

Yesterday, in the Queen’s Speech, the Government confirmed plans to support the unconventional gas and oil industry by facilitating horizontal drilling without landowner consent. Implementing these plans could enable this industry to bring forward their activities (and the implementation of the controversial “fracking” technique) more quickly but industry supporters may say there is more to be done in order to speed up the development of this fledgling sector.

Back in February this year, Rosie Kent and I blogged on the (then) current position regarding sub-surface ownership. This was a position confirmed in the Supreme Court case of Bocardo SA v Star Energy UK Onshore Limited [2011] 1 AC. In short, an English man’s land does indeed run to the centre of the earth but those drilling for hydrocarbons can apply to the courts to circumvent landowners “unreasonably” objecting to horizontal drilling through their land.

The relevant legislation has been little used in practice and on 24 May this year, the Government published a consultation asking, amongst other things, whether measures should be introduced to allow drilling below private land at a depth of 300 metres or more without first securing permission for access.  Such a right would be supported by a voluntary scheme for advance public notification and community compensation payments.   That consultation runs until 15 August 2014.

This has since been followed by the Queen’s Speech in which the Government confirmed plans to implement the measures suggested in the consultation, after reviewing the responses.  The new Infrastructure Bill will “support the development of gas and oil from shale and geothermal energy by clarifying and streamlining the underground access regime.”

Clearly shale gas operators should herald any assistance, in this infant market, a success. It certainly looks likely that legislation will follow the consultation. However, with the myriad of consents required and the numerous statutory bodies with whom potential drillers must liaise, should more be done to streamline the process to extraction? This is certainly not the end of the story.