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This document sets out the government response to the Consultation on Proposal for Underground Access for the Extraction of Gas, Oil or Geothermal Energy.
The consultation ran from 23 May to 15 August 2014. We received in total 40,647 responses from individuals and variety of organisations. We would like to thank all those who took the time to respond to the consultation.
The majority of respondents included campaign text opposing hydraulic fracturing and/or the proposed change to underground access legislation, and did not specifically address the questions to the consultation. We acknowledge the large number of responses against the proposal and the fact that the proposal has provided an opportunity for the public to voice their concerns and raise issues. However the role of the consultation was to seek arguments and evidence to consider in developing the proposed policy. Whilst a wide range of arguments were raised and points covered, we did not identify any issues that persuaded us to change the basic form of the proposals. The full Government response to the consultation, considers each argument, and the evidence put forward, and provides a response.
We will put before Parliament primary legislation to implement the policy proposals set out in the consultation paper. Parliament’s scrutiny of the provisions will provide further opportunities for public engagement on the issues.
This is a government consultation on proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy.
The consultation examines the existing procedures by which companies who wish to extract oil, gas or geothermal energy obtain access to underground land, and the problems raised by these procedures. The consultation sets out the policy position in relation to underground access rights for shale and geothermal operations. The policy contains three elements: Access rights, Payments for access, and Notification of access.
We intend to publish a full government response to this consultation in the autumn. Before the consultation closes, we would like to take the opportunity to clarify some of the key points in the consultation document.
What is the government consulting on?
The government is consulting on proposals designed to facilitate access to underground petroleum (especially shale gas and oil), and deep geothermal energy.
The consultation does not seek views on the broader policy of whether or not to develop either the petroleum or geothermal industries in the UK. Nor does it seek views on the potential risks and issues associated with surface works, because the proposed changes would only apply 300 metres or more underground.
Responses will be most useful if they are framed in direct response to the questions posed, though further comments and evidence are also welcome.
Is conventional oil & gas in scope?
The proposals would apply to any underground drilling for the extraction of geothermal energy and petroleum, which covers all oil and gas including conventional oil and gas.
Is underground coal gasification (UCG) in scope of the proposals?
UCG is not classed as petroleum, as defined in the Petroleum Act, because it uses an industrial process to create gas rather than the gas pre-existing naturally. Because these proposals cover only petroleum and geothermal energy, UCG is not within scope.
Is coal bed methane (CBM) in scope of the proposals?
CBM requires a Petroleum Licence as this product is defined under the Petroleum Act 1998 and would also require a coal access agreement with the Coal Authority to pass through the coal seam or any non-coal minerals owned by the Coal Authority. CBM is focussed on coal seams, however, if access to underground land outside of a coal seam is required then this currently would require an access agreement from those landowners in possession of that particular piece of land, via the same procedure as oil and gas.
Therefore, these proposals on underground access could be used to grant underground access (to land below 300 metres) for the purpose of CBM extraction. The requirements of a Petroleum Licence and coal access agreement would remain unchanged.
Is heat recovery from water in disused mines in scope?
Great Britain has geothermal potential in mine water, some of which is located at depths greater than 300m. The proposals in the consultation would apply to the extraction of mine water heat at these depths.
What will courts consider when making a decision on access under the existing procedure?
If individual access negotiations between a landowner and an oil and gas operator fail, the operator can refer the matter to the court via the Secretary of State. The Mines (Working Facilities and Support) Act 1966 allows minerals developers, including the holder of a petroleum licence to obtain a right of access, if certain conditions are met.
These conditions (as set out in section 3 of the Mines (Working Facilities and Support) Act 1966) state that a right cannot be granted unless it is not reasonably practicable to obtain the right by private arrangement for any of the following reasons:
a) that the persons with power to grant the right are numerous or have conflicting interests b) that the persons with power to grant the right, or any of them, cannot be ascertained or cannot be found c) that the persons from whom the right must be obtained, or any of them, have not the necessary powers of disposition, whether by reason of defect in title, legal disability or otherwise d) that the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable
The court must also be satisfied that the grant is expedient in the national interest.
This procedure has only once been used in respect of petroleum and there is no shale gas or oil-specific precedent due to the nascent stage of the shale industry. This procedure is not applicable to geothermal energy projects.
What do the proposals mean in terms of the law of trespass in England, Wales and Scotland?
In England and Wales, any unauthorised entry onto privately owned land is a trespass. In Scotland, although trespass is governed by Scottish law, it is similar in that trespass denotes any temporary physical intrusion in the land of another without his permission; it is an infringement of a person’s right to the exclusive use and occupation of his land.
The purpose of our proposals is not to change trespass law in England and Wales but the effect of the proposals is that trespass law would not apply to land deeper than 300 metres where a company had obtained an automatic right of access and was in compliance with any conditions attached to that right.
In terms of the law of trespass in Scotland, the proposals are the same as in England and Wales and the effect is the same. Interaction with planning in Scotland is the same as it is in England and Wales.
What depth would hydraulic fracturing take place at?
As set out in the consultation document, it is expected that hydraulic fracturing will typically occur at depths more than a mile down. However, it can take place closer to the surface – this is dependent on the geology of the operation. The Department of Energy and Climate Change holds no view on the merits of operations at different depths. This is for the environmental regulator to assess on a case-by-case basis.
Our proposals on access rights are about removing an existing obstacle and would apply to all applicable drilling activities below 300 meters. We consider it appropriate to keep the requirement in place for an operator to agree access with the individual landowners at depths above 300 metres, but this is not intended to preclude activities at these shallower depths.