The bidding process for licences to extract on-shore shale gas is due to begin.
But given continuing public concern about fracking, there is every likelihood that camps populated by well-organised, experienced demonstrators will quickly spring up around exploration sites – despite the fact that real fracking is still a long way off while test- drilling goes ahead.
So, what steps can landowners take to try to avoid long-running disputes?
Know your rights – and theirs
The immediate reaction for many landowners faced with any ‘invasion’ of protestors will undoubtedly be a call to the police. But unfortunately, without evidence of a crime, such as aggravated trespass or criminal damage, there will be little they can do.
When faced with these well-organised, determined protestors, landowners must recognise that the they will try to defend their actions by invoking 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.
As such, the land-owner will need to start Court proceedings and obtain a possession order and an injunction, but will find the Judge is required by the Human Rights Act to balance the competing rights of the landowner under article 1 of the ECHR to enjoy possession of their own land against the rights of the protestors under articles 8, 10 and 11 mentioned above.
Precedent
Two recent cases where this has been tested in Court, Balcombe and Barton Moss near Salford, were both won by the landowners, with the Judge deciding that in relation to those particular sites the protestors rights did not take priority over the landowners right to enjoy possession of their own land.
The protestors were not able to convince the Judge that they had a continuous link with the particular site under occupation, and there was nothing to stop them exercising their right to protest in another location which would avoid interfering with the rights of others.
However, the Courts have left open the possibility that in an appropriate (albeit exceptional case) there may be a situation where the rights of the protestors under the ECHR could trump landowners rights.
The law covering these protests is evolving quickly, as each case coming before the Court is assessed on its own merits. The protestors are well resourced, with their own legal advisers.
Unfortunately for landowners, it is solely their responsibility to deal with this situation, unless they have made prior arrangements with the exploration company. And if the worst happens and protestors occupy their land, they will need to act quickly, but appropriately.
The landowner must be careful. They can make no physical attempt to remove the protestors, damage possessions or prevent the protestors accessing food and water supplies. They must not manhandle anyone, however frustrating or intimidating the situation might feel, or it could be the landowner or their agents that end up facing criminal proceedings.
Advice
Seeking advice from lawyers that understand the process and work regularly in this area of law, as well as being ready to address Human Rights challenges, will save time and money in the long run.
For example, when seeking a possession order, it is more cost-effective to include as much of your land as possible, not just the specific site of the protest camp as this can save time and costs dealing with enforcement and eviction.
Landowners must ensure they have proof over the legal title to their land, including roadside grass verges, which will all be essential if you have to go to Court. Offering sites for test drilling well within your own land and well away from boundaries with your neighbours and any public roads may also help mitigate disruption from any protest camp which should appear.
Landowners should seek independent legal advice when negotiating with exploration companies. For example, you need to establish who will take control in the event of any protest as only the landowner is named in Court proceedings and they could take several weeks to be resolved.
Consider also whether indemnities can be secured from exploration companies against the costs of proceedings and eviction as they are substantial. It is unlikely you will be able to secure insurance against these costs.
When approached by an exploration company, a landowner must understand their position and recognise that simply granting a permission to test drill will not suffice. They should ensure they are not left footing the bill for the costs of Court proceedings and evicting protestors off their land that might not actually have any valuable gas 3000ft below it.