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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How Donald Trump is slouching towards the Republican nomination

There was supposed to be a ceiling above which Trump’s popular support could not climb.

In America, you can judge a crowd by its merchandise. Outside the Connecticut Convention Centre in Hartford, frail old men and brawny moms are selling “your Trump 45 football jerseys”, “your hats”, “your campaign buttons”. But the hottest item is a T-shirt bearing the slogan “Hillary sucks . . . but not like Monica!” and, on the back: “Trump that bitch!” Inside, beyond the checkpoint manned by the Transportation Security Administration and the secret service (“Good!” the man next to me says, when he sees the agents), is a family whose three kids, two of them girls, are wearing the Monica shirt.

Other people are content with the shirts they arrived in (“Waterboarding – baptising terrorists with freedom” and “If you don’t BLEED red, white and blue, take your bitch ass home!”). There are 80 chairs penned off for the elderly but everyone else is standing: guys in motorcycle and military gear, their arms folded; aspiring deal-makers, suited, on cellphones; giggling high-school fatsos, dressed fresh from the couch, grabbing M&M’s and Doritos from the movie-theatre-style concession stands. So many baseball hats; deep, bellicose chants of “Build the wall!” and “USA!”. (And, to the same rhythm, “Don-ald J!”)

A grizzled man in camouflage pants and combat boots, whose T-shirt – “Connecticut Militia III%” – confirms him as a member of the “patriot” movement, is talking to a zealous young girl in a short skirt, who came in dancing to “Uptown Girl”.

“Yeah, we were there for Operation American Spring,” he says. “Louis Farrakhan’s rally of hate . . .”

“And you’re a veteran?” she asks. “Thank you so much!”

Three hours will pass. A retired US marine will take the rostrum to growl, “God bless America – hoo-rah!”; “Uptown Girl” will play many more times (much like his speeches, Donald J’s playlist consists of a few items, repeated endlessly), before Trump finally looms in and asks the crowd: “Is this the greatest place on Earth?”

There was supposed to be a ceiling above which Trump’s popular support could not climb. Only a minority within a minority of Americans, it was assumed, could possibly be stupid enough to think a Trump presidency was a good idea. He won New Hampshire and South Carolina with over 30 per cent of the Republican vote, then took almost 46 per cent in Nevada. When he cleaned up on Super Tuesday in March, he was just shy of 50 per cent in Massachusetts; a week later, he took 47 per cent of the votes in Mississippi.

His rivals, who are useless individually, were meant to co-operate with each other and the national party to deny him the nomination. But Trump won four out of the five key states being contested on “Super-Duper Tuesday” on 15 March. Then, as talk turned to persuading and co-opting his delegates behind the scenes, Trump won New York with 60 per cent.

Now, the campaign is trying to present Trump as more “presidential”. According to his new manager, Paul Manafort, this requires him to appear in “more formal settings” – without, of course, diluting “the unique magic of Trump”. But whether or not he can resist denouncing the GOP and the “corrupt” primary system, and alluding to violence if he is baulked at at the convention, the new Trump will be much the same as the old.

Back in Hartford: “The Republicans wanna play cute with us, right? If I don’t make it, you’re gonna have millions of people that don’t vote for a Republican. They’re not gonna vote at all,” says Trump. “Hopefully that’s all, OK? Hopefully that’s all, but they’re very, very angry.”

This anger, which can supposedly be turned on anyone who gets in the way, has mainly been vented, so far, on the protesters who disrupt Trump’s rallies. “We’re not gonna be the dummies that lose all of our jobs now. We’re gonna be the smart ones. Oh, do you have one over there? There’s one of the dummies . . .”

There is a frenzied fluttering of Trump placards, off to his right. “Get ’em out! . . . Don’t hurt ’em – see how nice I am? . . . They really impede freedom of speech and it’s a disgrace. But the good news is, folks, it won’t be long. We’re just not taking it and it won’t be long.”

It is their removal by police, at Trump’s ostentatious behest, that causes the disruption, rather than the scarcely audible protesters. He seems to realise this, suddenly: “We should just let ’em . . . I’ll talk right over them, there’s no problem!” But it’s impossible to leave the protesters where they are, because it would not be safe. His crowd is too vicious.

Exit Trump, after exactly half an hour, inclusive of the many interruptions. His people seem uplifted but, out on the street, they are ambushed by a large counter-demonstration, with a booming drum and warlike banners and standards (“Black Lives Matter”; an image of the Virgin of Guadalupe, holding aloft Trump’s severed head). Here is the rest of the world, the real American world: young people, beautiful people, more female than male, every shade of skin colour. “F*** Donald Trump!” they chant.

After a horrified split-second, the Trump crowd, massively more numerous, rallies with “USA!” and – perplexingly, since one of the main themes of the speech it has just heard was the lack of jobs in Connecticut – “Get a job!” The two sides then mingle, unobstructed by police. Slanging matches break out that seem in every instance to humiliate the Trump supporter. “Go to college!” one demands. “Man, I am in college, I’m doin’ lovely!”

There is no violence, only this: some black boys are dancing, with liquid moves, to the sound of the drum. Four young Trump guys counter by stripping to their waists and jouncing around madly, their skin greenish-yellow under the street lights, screaming about the building of the wall. There was no alcohol inside; they’re drunk on whatever it is – the elixir of fascism, the unique magic of Trump. It’s a hyper but not at all happy drunk.

As with every other moment of the Trump campaign so far, it would have been merely some grade of the cringeworthy – the embarrassing, the revolting, the pitiful – were Trump not slouching closer and closer, with each of these moments, to his nomination. 

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism