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Fracking and trespass laws

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Fracking and trespass laws

Postby bloater » Mon Jan 26, 2015 11:58 pm

The government, in passing the law that allows fracking companies to drill under private land without the permission of the landowner, have taken away a private property right without compensation.

It could be argued that the right to contest fracking is not valueless, as if the fracking company had to go to court to obtain permission, the landowner could have received compensation, albeit a nominal amount. I understand that Al-Fayed received £1000 against an oil company that drilled under his land, even though no damage was done, although that was I believe a trespass tort. Plus the fracking company may have offered money to the affected landowners for permission to avoid the hassle and expense of having to go to court.

What do you think the odds of a successful legal challenge to this law under the Human Rights Act article 1 are?
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Re: Fracking and trespass laws

Postby Slartibartfast » Tue Jan 27, 2015 1:14 am

bloater wrote:What do you think the odds of a successful legal challenge to this law under the Human Rights Act article 1 are?

Article 1 seems to have little relevance, what aspect do you think applies here?

Off the top of my head, I don't think there's much chance of challenging this. Mining has always gone on under people's land, railway tunnels and water mains run under private land, airplanes fly over private land, and radio waves travel through private property. The State can reasonably justify such activity as proportionate and necessary for the public interest.
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Re: Fracking and trespass laws

Postby Hairyloon » Tue Jan 27, 2015 3:33 am

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
Slartibartfast wrote:Mining has always gone on under people's land...

Mining is subject to well established law: mining rights are often set out quite separately from the freehold title.
railway tunnels and water mains run under private land...

Is that not usually accomplished by dint of an easement?
If you are right about these things, then why do they need to change the law?
The State can reasonably justify such activity as proportionate and necessary for the public interest.

Can it?
Isn't that the whole point of the argument?
Remind me again how maintaining our contribution to climate change is in the public interest.
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Re: Fracking and trespass laws

Postby dls » Tue Jan 27, 2015 9:51 am

mining rights are often set out quite separately from the freehold title.


It was common in Manchester to exclude all minerals and other materials of whatever nature - I was never sure what was intended to be left.

The phrase is "Cuius est solum, eius est usque ad coelum et ad inferos"

Whosesoever is the land, he owns from the heavens to the depths.

Unfortunately, like many legal maxims, it nowadays has more exceptions than is comfortable for a rule.

Interestingly, Lord Justice Aikens said: "The 13th century latin maxim "cuius est solum, eius est usque ad coelum et ad inferos" is not and never has been a rule of English law. It is, to adopt Lord Wilberforce's remarks in Commissioner for Railways v Valuer General, "so sweeping, unscientific and unpractical a doctrine [as] is unlikely to appeal to the common law mind" and it has not done so." (Star Energy UK Onshore Ltd & Anor v Bocardo SA [2009] EWCA Civ 579 )
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Re: Fracking and trespass laws

Postby b1969 » Tue Jan 27, 2015 9:58 am

Slartibartfast wrote:Article 1 seems to have little relevance, what aspect do you think applies here?


Article 1 to Protocol 1, presumably. (That's what Hairy is quoting).
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Re: Fracking and trespass laws

Postby dls » Tue Jan 27, 2015 10:22 am

It is only an interference with your rights if you have the rights to be interfered with. the current thinking is that when you own land, you own the surface of the land and a thin-ish slice of airspace above and of subsoil below.

It is very arguable that someone burrowing 150m (or more) below your property is not trespassing on your land.
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Re: Fracking and trespass laws

Postby Slartibartfast » Tue Jan 27, 2015 12:59 pm

Energy minister Matthew Hancock added: “These new rules will help Britain to explore the great potential of our national shale gas and geothermal resources, as we work towards a greener future - and open up thousands of new jobs in doing so.”

Ken Cronin, chief executive of UK Onshore Oil and Gas, added: “The amendments to the bill will give automatic access rights to underground land below 300 metres, bringing it in line with other essential services such as water, sewage and coal.”


www.utilityweek.co.uk/news/trespass-law ... MeKny6UO7Q
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Re: Fracking and trespass laws

Postby Hairyloon » Tue Jan 27, 2015 3:00 pm

Slartibartfast wrote:Energy minister Matthew Hancock added: “These new rules will help Britain to explore the great potential of our national shale gas and geothermal resources, as we work towards a greener future - and open up thousands of new jobs in doing so.”

I think I would be happier about it if the rights to it remained in public hands, rather than passed out down at the Old Boy's club.
Last edited by atticus on Tue Jan 27, 2015 7:30 pm, edited 1 time in total.
Reason: Fix quotation
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Re: Fracking and trespass laws

Postby Slartibartfast » Tue Jan 27, 2015 4:14 pm

I would say the same about most of our national infrastructure. Stuff privatisation, and stuff 30 different electric companies trying to sell me the same product under various deliberately-confusing tariffs. Stuff privatised water, and especially privatisation of the NHS.
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Re: Fracking and trespass laws

Postby Hairyloon » Tue Jan 27, 2015 5:38 pm

Slartibartfast wrote:I would say the same about most of our national infrastructure. Stuff privatisation, and stuff 30 different electric companies trying to sell me the same product under various deliberately-confusing tariffs. Stuff privatised water, and especially privatisation of the NHS.

Yes, except that I wouldn't want to rely on the government being in charge of important things like energy and water: we need another way of doing it.
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