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Fracking – A Constitutional Fault Line

Fracking – A Constitutional Fault Line

The Smith Commission has recommended that the power to grant licenses needed to undertake hydraulic fracturing (or fracking) be devolved to Holyrood.  It looks like the UK Government has already begun that process.  

One of the controversies with fracking, is the proposal by the UK Government to allow developers to drill for shale gas under private property (including residential properties) without the consent of the landowner.  This change had been sought by the industry, amid concerns that the need to obtain consent from every affected party would make it very difficult, if not impossible, to operate.  Wells can extend laterally for lengths in excess of 2 miles, meaning that the consent of 100s if not 1000s of landowners would be needed.  Where consents cannot be secured, then the only alternative is to obtain permission via the Courts – which can be a time consuming process.  

The Infrastructure Bill, currently going through Westminster, would give operators the right to access land below 300m in depth for the purposes of exploration or exploitation of petroleum or deep geothermal energy. No consent from the landowner would be needed.  Works undertaken above this depth would still require the consent of the landowner.  In return, operators would be required to make a payment to a community fund.  

A proposed amendment to devolve the whole of the licensing regime to Scotland was not supported by MPs. However, the UK Government has confirmed that it will now bring forward its own amendment to exclude Scotland from the rights of access elements of the new legislation.  

There are a number of fracking proposals under active consideration in Scotland, and the Scottish Government’s decision into Dart Energy’s proposals in Falkirk is still awaited.  The industry has made it clear that the access rights proposed in the Infrastructure Bill are vital.  It will now be for the Scottish Government and Scottish Parliament to decide if those rights of access will be available in Scotland. The UK Government’s decision to exclude Scotland from elements of the Infrastructure Bill is also further evidence of the continuing divergence between Scots and UK law on the consenting and delivery of major infrastructure and energy projects. 

Craig Whelton
Partner

LChalmers