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By Andrew Fearn

Aug 13th, 2018

Fracking: Will trespassers be prosecuted?

Nottinghamshire and the Trent Valley have long been a source of valuable minerals. In the north of the county, coal was a fundamental economic driver until only a few years ago. The Trent Valley itself continues to be a valuable and prolific source of sand and gravel. As the government commits itself to more and more infrastructure projects and house-building gains traction, the resource becomes increasingly important.

A new feature, in this area at least, is fracking. Most people know that fracking is an underground procedure designed to force shale gas to the surface. Because the procedure incorporates a horizontal pipe under the surface, it has raised interesting issues about the law of trespass.

The basic fundamental is that a landowner owns everything under his land, irrespective of depth. There are some statutory exceptions and these include precious metals, oil and coal. Thus if someone sinks a shaft or well under my land, this constitutes a trespass. Always remember, though, that the damages for trespass will usually be limited to compensation for actual loss.

Clearly, the fracking process has had the potential for multiple trespass claims and the law has been altered to accommodate the problem. A new Act of Parliament in 2015 (The Infrastructure Act) circumvented the issue by giving the right to use land over 300 metres below the surface for exploiting petroleum or “deep geothermal energy”. This means that someone drilling a hole at least 300 metres under my land for this purpose will not be committing a trespass.

Interestingly, no one owns water which flows naturally underground. This has very topical implications in the summer draught of 2018! So, if a farmer with a borehole, sunk legitimately on his own land, draws water from under his neighbour’s land and even, possibly, deprives the neighbour of his underground water supply, that neighbour cannot object.

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