The prospect of a debate on environmental issues by General Synod on Wednesday 12 February prompted a thought-provoking post by Gillan Scott The Church of England mustn’t waste this opportunity to address the ravages of climate change, and an exchange of comments some of which suggested that the Church of England should “vigorously and vocally opposes fracking (hydraulic fracturing)”.  The initial foray into this area by the Diocese of Blackburn demonstrated the difficulties of engaging in contentious areas such as this.  Whilst the leaflet produced by the diocese provided a good overview of this emerging technology, its portrayal of some of the alleged environmental concerns did not stand close scrutiny, and its use of emotive language strayed from the impartiality necessary within such a document. Our post Fracking, the Facts and the Church concluded with the suggestion that in view of the heightened profile of fracking within the national and international media, the Church of England should give urgent thought to the development of an agreed position on fracking.

Interest in fracking was further escalated by: the high-profile protests in Balcombe, West Sussex; the Royal Society for the Protection of Birds, (RSPB), announcing its opposition to fracking at a site in Lancashire; and media confusion on the Church’s Mineral Registration Programme.  This resulted in the publication of two statements by the Church:  a Clarification on suggested links with hydraulic fracturing or ” fracking”; and a Statement from Church of England on fracking. 

The Statement on fracking was made by Philip Fletcher, Chair of the Church of England’s group on Mission and Public Affairs, and referred to earlier statements by the Diocese of Blackburn and from the Bishop of Chichester.  It envisaged the role of the Church

“[a]s with much of wider society [it] will continue debating the issue around fracking, seeking to balance theological, economic, environmental and societal issues.

Significantly, however, it stated that

“[the Church of England] has no official policy either for or against hydraulic fracturing (known as ‘fracking’). However there is a danger of viewing fracking through a single issue lens and ignoring the wider considerations.

Although satisfactory as a “holding” statement, events have moved on. In January 2014 the BBC reported that companies at the forefront of the UK’s shale gas industry are planning a “substantial” expansion in the number of drilling sites, and Energy minister Michael Fallon anticipates up to 40 shale gas sites to be drilled in England over next two years. Consequently there is now strong governmental pressure to remove legal obstacles currently preventing energy companies exploiting the technology.

Legal Issues

Whilst landowners may not own the title to sub-surface minerals, they may currently prevent energy firms from accessing these minerals under their land through the law of trespass. In his article Fracking – “not under my backyard!” Ben Du Feu analyses the legal issues and the Supreme Court’s clarification of the law on trespass for sub-surface horizontal drilling. In Star Energy Weald Basin Limited and another v Bocardo SA, which concerned drilling for petroleum in the wells that extended from about 800 feet to 2,800 feet below the surface  Lord Hope delivered the court’s unanimous decision that:

– “the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else,” [para.27];

– “the paper title owner to the strata and all within it (other than any gold, silver, saltpetre, coal and petroleum which belong to the Crown at common law or by statute), has the prima facie right to possession of those strata so as to be deemed to be in factual possession of them., [para 31]; and

– Since the right to search and drill was obtained by the respondents under licence from the Crown, there is no common law defence against a claim of trespass by a landowner who was not party to that arrangement, and the relevant statutory provisions do not provide a defence to a landowner’s trespass claim [paras. 32 to 36].

Du Feu notes

“these principles apply regardless of whether any harm is caused to the estate, or use or enjoyment of the land is interfered with … any objection by the landowner would be enough to prevent drilling from taking place under their land, without applying to the court under the Mines (Working Facilities and Support) Act 1966. To succeed, the fracking company making the application would have to demonstrate, amongst other things, that the grant is expedient in the national interest.

DECC is reported to be reviewing the planning process related to fracking operations to determine whether this is “fit for purpose”, and du Feu suggests that the options open to the government might include: a form of compulsory purchase, with mandatory (if nominal) compensation; or  a relaxation of the application process laid out in the Mines (Working Facilities and Support) Act 1966.

Comment

The development of a position and policy on fracking is a now a priority for the Church in view of: the potential impact of exploration and extraction operations on a number of parishes; the need to inform local groups, in the light of the growing opposition to the process; and the expected DECC consultation paper. It also has an important role to play as a significant landowner, and during the passage of any proposed legislation through the parliamentary process.