The Government has announced in the Queen’s speech that it intends to introduce new laws to allow fracking companies to drill deep underneath homes. In order to stop fracking companies from drilling horizontally under homes hundreds of metres underground, Greenpeace and other campaigners have encouraged concerned home owners to declare their rights of ownership and refuse permission to drill. Without permission, drilling could be a “trespass”, leading to legal action by homeowners living above.
Under the laws of England and Wales, when someone buys land he also has the right to the minerals and land beneath the surface property – subject to parliamentary statute and licensing. Fracking work will involve horizontal drilling. So, if someone drills underneath another’s property – unless the owner has given their permission, the activity will amount to a trespass. The effect of this is that legal action can be taken against the driller – even if no damage has been caused to property. The remedies for trespass are an injunction to prevent or stop the activity taking place or, alternatively, “damages in lieu” (or compensation instead of an injunction).
Fracking or hydraulic fracturing involves sending water and chemicals at high pressure into shale rock deep underground to release methane gas which is then piped to the surface. Like all forms of drilling or mining for fuels, there will often be environmental harm which will need to be balanced by politicians alongside economic benefits. The public concerns about fracking can probably be divided into two: the local and wider environmental effects including the fear of earth-tremors, contamination of ground and surface water and the release of greenhouse gases.
However, to avoid the problem of having to obtain permission from home owners, the Government has announced through the Queen’s speech that it intends to change the law and has launched a consultation. Subject to the outcome of the consultation, developers would be able to run shale gas pipelines under homeowner’s land without their permission. The Government is proposing to legislate to allow an underground right of access below 300m for drillers, a voluntary payment from industry and a notifi cation for access to the home owners and communities.
The industry has previously balked at the practical difficulties of having to get permission off the many owners who may be affected – and so this will presumably be welcome. However, the campaigners have promised to fight on – so we may well be seeing challenges to the Bill when it becomes law. The consultation opened on 23rd May and will close on 15th August 2014.

This article was written by Justin Neal, one of our environmental law experts. It was originally published in Environmental Law Monthly in June 2014 and is reproduced here with their permission.

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