Proposals to change trespassing laws to allow energy companies to drill beneath homes without the owner’s permission present a ‘radical’ change to homeowners’ rights, according to lawyers, but will make little difference in practice.
Ministers are considering a change that will make it easier for companies to search for shale gas, avoiding costly proceedings in cases where owners refuse to give their consent to exploratory works.
At present, energy companies require the homeowner’s permission before carrying out the drilling, which for fracking is about a mile beneath the surface, to avoid trespassing. Owners who object may seek an injunction to prevent the work or compensation for interference.
The Supreme Court held in 2010 that while there is a trespass in such cases, it does not interfere with the ownership or enjoyment of the land, so any damages will be minimal (under £100).
Landowners in Sussex have sought to block Celtique Energie from drilling to prospect for oil.
Jennifer Rickard, head of the real estate dispute resolution team at City firm Nabarro, said that if the law were to be changed, the government could introduce a statutory exception allowing companies to get a licence to trespass, or, more radically, it could state that landowners own the soil under their properties only to the extent reasonably required for the use of the property.
She said the change would in theory represent ‘a radical interference with property rights’, but in practice would not make a great deal of difference.