Anti-fracking Protest Camp At Barton Moss. Photo: Christopher Furlong, Getty
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Get the frack off my land: reform of trespass laws explained

Controversial reform to trespass legislation will allow fracking firms to drill under your home without your permission. How big a dent is this to your land ownership rights?

The government gave fracking companies the green light in the Queen’s speech this week, crucially removing the requirement for firms to gain permission from home-owners to drill under their land.

Although ministers claimed a final decision would depend on the outcome of a recently-launched public consultation, they signalled their firm intention to smooth the path for firms to exploit Britain’s shale gas reserve.

Much has been made of this permission waiver, which was first floated by the government in January, and which is likely to be included in an Infrastructure Bill during this Parliament.

The trespass exemption for fracking firms sits uncomfortably with most people’s intuitive interpretation of land ownership, but also their legal understanding of the matter too.

After all, the most common definition of land rights and a central principle of property law, states: “cuius est solum, eius est usque ad coelum et ad inferos”. 

Or, for non-Latinists, this translates roughly* as: “he who owns soil does so up to the heavens and down to the centre of the earth”.

Well, up to a point. Admittedly, the legal principle, which entered common law during the reign of Edward I, is still accepted in limited form today in modern law.

But there are many exceptions, including airspace, water, trees, plants and flowers, wild animals, and, crucially, mines and minerals.

So the implication, frequently appealed to in the current furore over fracking, that horizontal drilling under a private owner’s land is a unique exception to, or transgression against, the owner’s legal land rights is misleading.

That said, it is true that up until now, current laws of trespass have required fracking firms to gain permission from land owners to drill under their land. Drilling can extend up to 3km horizontally underground from a central well pad.

This has held true for all historical landward oil and gas exploration in the UK. Companies seeking conventional energy sources on land require a license from the Department of Business, Innovation and Skills, which grants exclusive rights to explore for and exploit onshore oil and gas.

The license has never included any rights of access, however, nor does it waive the need for the company to gain planning permission and any other consent needed under current legislation.

Further complications arise if a company wants to drill through a coal seam in search of gas – they need the permission of the Coal Authority, which has been the rights holder of all British coal since the valuable sedimentary rock was nationalised in 1994.

Which brings us to the other question of ownership of minerals in the UK. Firstly, to define minerals. According to the Town and Country Planning legislation, minerals are “all substances in or under land of a kind ordinarily worked for removal by underground or surface working, except that it does not include peat cut for purposes other than for sale.”

Essentially, a home- or land-owner holds the rights (which should be registered in the Land Registry along with details of surface land rights) to all the minerals in their land, with the important exceptions of gold, silver, coal, oil and gas.

Land-owners would still require planning permission, however, from a mineral planning authority to extract any of these minerals that they technically own from their land.

As for the ownership of oil and gas, the Petroleum (Production) Act 1934 granted all onshore rights to the Crown. A different act presides over rights in the UK Continental Shelf outside UK territorial waters, but again these are vested in the Crown.

So, the fact that the state owns any shale gas that might under your land is not out of keeping with rights to conventional fuels.  And while the proposed reform of trespass laws charts new territory for land-owners' legal rights, there are many other exemptions to these rights as they stand.

The nub of it is that fracking firms can already drill under your land without your permission. The new legislation will only make the process easier.

As Energy Minister Michael Fallon pointed out this week: “At the moment, a developer can apply to the courts for permission to drill a horizontal pipe a mile down underneath your house and needs to go to the Secretary of State to get that permission. We've got a solution that we think simplifies that."

 

 

* Four years reading for a classics degree well spent then

 

Lucy Fisher writes about politics and is the winner of the Anthony Howard Award 2013. She tweets @LOS_Fisher.

 

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"Labour are as pro-Brexit as the Tories": what do Sinn Fein's MPs really want from Westminster?

Its seven MPs are much less sympathetic to Corbyn's party than popularly imagined, and won't ever take their seats.

Should the Conservative minority government fall, what is Jeremy Corbyn’s route to power? The counterfactual as popularly understood goes like this: Corbyn would pick up the phone to his old pal Gerry Adams and convince Sinn Fein’s seven MPs to abandon the habit of a century and take their seats.

There are countless reasons why this would never happen, most of them obvious. One is more surprising. Despite Corbyn’s longstanding links with the republican cause, the Labour party is not all that popular among a new intake, which is preoccupied with one thing above all else: Brexit.

No wonder. Sinn Fein’s long game is an all-Ireland one, and the party believe the UK’s departure from the EU will hasten reunification. In the meantime, however, its priority is a Brexit deal that gives Northern Ireland – where 56 per cent of voters backed remain – designated status within the EU.

Pioneered by the moderate nationalist Social Democratic and Labour Party as an antidote to Brexit, designated status would allow the six counties in the North to continue to enjoy the EU’s four freedoms. But the idea is anathema to unionists and the UK government, and Sinn Fein sees little evidence that the Westminster establishment will make it work – not even Labour.

“They are as pro-Brexit as the Conservatives are,” says Mid Ulster MP Francie Molloy. “We’re anti-Brexit. We want to see the right of the people in the North who voted to remain in Europe respected.”

Simmering resentment over what the party perceives to have been broken promises on Tony Blair’s part – especially over legal protection for the Irish language, a key stumbling block obstructing the resumption of power-sharing – makes the already implausible deal even less likely.

“The Irish language act was something that Blair agreed to,” says Molloy. “So when people talk about us taking our seats, they don’t realise we would be backing a Labour government that wouldn’t be living up to its commitments either, and would be just as pro-Brexit as the Conservatives are."

That criticism may well surprise a lay audience whose working assumption is that Adams and Corbyn work hand in glove. But it is perhaps the best illustration of Sinn Fein’s parliamentary priorities: its seven MPs will not in any circumstances take their seats but use their Westminster presence to lobby ministers and MPs of all stripes while running constituency offices at home (they are unsalaried, but claim expenses).

Crucially, its MPs believe abstentionism strengthens, rather than weakens their negotiating hand: by their logic other parties need not and do not fear them given the fact they do not have voting power.

They will use their leverage to agitate for special status above all else. “Special status is the biggest issue that we are lobbying for,” says Molloy. “We feel that is the best way of securing and retaining EU membership. But if we get a referendum on Irish unity and the people vote for that, then the North will automatically join the EU.”

But that wasn’t always the received wisdom. That assurance was in fact secured by Mark Durkan, the former deputy first minister and SDLP MP beaten by Sinn Fein last week, after an exchange with Brexit secretary David Davis at the leaving the EU select committee. The defeat of the three SDLP MPs – two of them by Sinn Fein – means there will be no Irish nationalist voice in the commons while Brexit is negotiated.

Surely that’s bad news for Northern Irish voters? “I don’t think it is,” says Molloy. “The fact we took two seats off the SDLP this time proves abstentionism works. It shows they didn’t deliver by attending. We have a mandate for abstentionism. The people have now rejected attendance at Westminster, and rejected Westminster itself. We’ve never been tempted to take our seats at all. It is very important we live by our mandate.”

If they did, however, they would cut the Conservatives’ and Democratic Unionist Party’s working majority from 13 to a much more precarious six. But Molloy believes any alliance will be a fundamentally weak one and that all his party need do is wait. “I think it’ll be short-lived,” he says. “Every past arrangement between the British government and unionist parties has always ended in tears.”

But if the DUP get its way – the party has signed a confidence and supply deal which delivers extra cash for Northern Ireland – then it need not. Arlene Foster has spoken of her party’s desire to secure a good deal for the entire country. Unsurprisingly, however, Sinn Fein does not buy the conciliatory rhetoric.

“They’ve never really tried to get a good deal for everybody,” says Michelle Gildernew, who won the hyper-marginal of Fermanagh and South Tyrone back from the Ulster Unionists last week. “The assembly and executive [which Sinn Fein and the DUP ran together] weren’t working for a lot of groups – whether that was the LGBT community, the Irish language community, or women...they might say they’re going to work for everybody, but we’ll judge them by their actions, not their words.”

Molloy agrees, and expresses concern that local politicians won’t be able to scrutinise new spending. “The executive needs to be up and running to implement that, and to ensure a fair distribution. If there’s new money coming into the North, we welcome that, but it has to be done through the executive.”

On current evidence, the call for local ministers to scrutinise the Conservatives’ deal with the DUP is wishful thinking – Northern Ireland has been without an executive since February, when the late Martin McGuinness resigned as deputy first minister and triggered a snap election.

The talks since have been defined by intransigence and sluggishness. James Brokenshire, the Northern Ireland secretary, has had to postpone the talks deadline on four separate occasions, and has been criticised by nationalists for his perceived closeness to the DUP.

The final deadline for the restoration of an executive is 29 June 2017. Sinn Fein has called for Brokenshire to recuse himself in favour of a neutral chair. “His hands are tied now, completely,” says Molloy. “The Conservative party were always questionable on where they stood – they’ve always been unionists. The issue now is whether they can act neutrally as a guarantor to the Good Friday Agreement.”

He believes that question is already settled. “Legally, they have to act to ensure that nothing happens to damage that agreement – but we’ve already breached it through Brexit. There was no consultation. The people of the North voted to remain and it hasn’t been recognised. It totally undermines the consent principle.”

Just how they and Brokenshire interpret that principle – the part of the Good Friday Agreement that specifies the constitutional status of the North can only change by consent of its people – will be key to whether they can achieve their ultimate goal: Irish unity.

Molloy and Gildernew say the fact that 11 of Northern Ireland’s 18 constituencies voted to remain in the EU is enough for Brokenshire to call one within the next five years (though polling consistently shows that a clear majority of the province’s electorate, including a substantial minority of nationalists, would vote to stay in the UK). They are confident they can win, though, failing that, Molloy envisages it as the first in several referenda on unification.

But beneath the optimism lies the knowledge that the British government are unlikely to heed their calls. And, willingly absent from the Westminster chamber, they say the UK government’s discussions about Brexit are illegitimate. They see their real powerbase as elsewhere: in Dublin’s Dail Eireann, where Sinn Fein is the third largest party, and the chancelleries of Europe.

“That’s where most of the negotiation will actually happen,” says Molloy. “The EU27 will make the decisions. They won’t be made in Westminster, because the British have already set out what they’re doing: they’re leaving.”

But with seven MPs already lobbying ministers and a united Ireland unlikely to happen in the immediate future, Sinn Fein itself won’t be disappearing anytime soon.

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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