Market View: Fracking protests – a landowner’s guide

A recent spate of planning decisions look set to accelerate the introduction of commercial-scale fracking in the UK.

With shale gas extraction firmly back on the agenda for UK energy companies, this is likely to prompt an eruption of occupational protests from anti-fracking campaigners in the short to medium term.

Crucially, unless a prior arrangement has been made with the exploration company, it is the sole responsibility of landowners to handle any demonstrations on their land. As a result of this, landowners must ensure they are aware of their own rights and ready to react lawfully to any potential disputes.

In the first approval of its kind since 2011, at the end of May 2016 North Yorkshire councillors authorised the extraction of shale gas by Third Energy at a site near Kirby Misperton, Ryedale. Last December, the Oil and Gas Authority offered 93 new fracking licenses spanning 159 potential sites across the UK. Although the Third Energy decision is now facing a Judicial Review challenge which Friends of the Earth and others launched in the High Court last week, energy companies will nevertheless look to begin exploratory drilling projects across the UK.

If an occupational protest does ensue, unless there is evidence that a crime has been committed, i.e. criminal damage or aggravated trespass, it is unlikely that a call to the police will assist in the removal of protesters. In most cases, landowners will be required to take Court action themselves, obtaining a Possession Order before they can lawfully evict the protesters from their property. To do so effectively, action must be taken as soon as possible after the protest begins and proof of the legal title of the land must be presented to the Court. Rather than seeking a Possession Order limited to the immediate site of the protest, it is often advisable for landowners to try to protect as much of their surrounding land as possible, ensuring cost-efficient enforcement and preventing protesters from simply relocating from one area of their land to another.

In defending themselves against a Possession Order, protesters will most commonly try to invoke the European Convention on Human Rights (ECHR), specifically Article 8 – right to respect for a person’s home, Article 10 – freedom of expression, and Article 11 – freedom of assembly and association. However, existing legal precedent in this area demonstrates that claims of this nature are most likely to be rejected by the Court in favour of the legal rights of private landowners to enjoy possession of their own land.

This was the case in the instance of Manchester Ship Canal Developments Ltd v Crane & Others 2014. Here, a Possession Order was obtained against fracking protesters who had blocked Barton Moss road, which gave access to a farm where the owners had allowed an energy company to carry out exploratory drilling connected with fracking. The judge ruled that Articles 10 and 11 did not provide a sufficient defence to the possession claim and did not justify trespassing and occupying private land in order to protest. However, the question of whether Article 8 could found a defence for protesters on private land was left open by this case.

Fortunately for landowners, it is a more recent ruling, which provides a degree of assurance against the possibility of protesters running an Article 8 ECHR defence – Amsprop Limited v Persons Unknown 2015. This case related to a Possession Order sought by a private landowner who was attempting to remove a large group of protesters from a vacant department store in Piccadilly, London. The individuals in question had set up camp in the store and tried to invoke their ‘right to respect for a person’s home’ under Article 8, in order to resist the making of a Possession Order. The Judge emphatically ruled in this instance however, that a private landowner does not need to be concerned with Article 8 where his land is occupied by protesters who are trespassing.

Crucially though, this “exemption” from Article 8 does not also extend to Possession Orders over public land, such as that owned by a local authority, public verges or highways.

As such, private landowners should offer sites for test drilling which are well within the boundaries of their own property and that are a safe distance away from public roads and neighbours – thus reducing the risk of disruption from any legal protests that may arise nearby.

While agreeing to test drilling by energy companies may ultimately prove lucrative – in the event that valuable gas reserves are discovered, landowners should be aware of the potential risks and financial costs associated with fracking protests. Although securing insurance against such eventualities is rarely a practical option, with the right advice and guidance it may be possible for landowners to secure suitable indemnities from the exploration company against the cost of court proceedings.

Ensuring a swift and measured reaction to trespassers is essential in minimising disruption and successfully attaining a possession order to evict the offending individuals from private land.