Scottish householders rights to object to fracking to be removed
UK announces decision to drill under homes without consent.
UK Government have announced that they are to remove the rights of householders to object to oil and gas drilling and hydraulic fracturing beneath their homes. This will include householders in Scotland, and comes despite 99 per cent of respondents to the UK Government consultation on the proposals objecting to them.
It will mean that companies will be allowed to drill below people’s land without first negotiating a right of access.
Scotland’s Energy Minister Fergus Ewing officially objected to the proposals and has condemned the decision, and has called for the key powers relating to this issue to be devolved to Scotland as part of the current devolution process. This would allow unconventional oil and gas exploration in Scotland to be considered in a cautious, considered and evidence-based way, as opposed to the “gung-ho” approach of the UK Government.
Commenting Mr Ewing said:
“The UK Government failure to listen to our concerns is of great worry. That they have also failed to listen to 99 per cent of respondents to their own consultation just emphasises their “gung-ho” approach to the whole issue of fracking. We strongly believe that decisions on oil and gas drilling should be made by the people who live in Scotland, through the Parliament and Government they elected.
“UK Government proposals to remove the right of Scottish householders to object to drilling under their homes, without so much as debate in the Scottish Parliament, flies in the face of Scotland’s cautious, considered and evidence based approach on this issue. It is also fundamentally an issue affecting land ownership rights.
“Whatever your view on the issue of unconventional oil and gas – and it is clear that there are both opportunities and concerns - there is only one way that the people of Scotland can determine the approach in Scotland – including beneath their homes and land. That is with the devolution of the necessary powers to Scotland and the current devolution process for the “extensive new powers” promised in the vow should include these powers.
“Unconventional oil & gas developments should only ever happen under a robust regulatory regime, and the Scottish Government takes this issue particularly seriously.
“We are still to see precisely how DECC plan to implement the proposals in their consultation document and will review further when we see the clauses for inclusion in the Infrastructure Bill.”
1. The UK Government decision is here: https://www.gov.uk/government/news/government-to-remove-barriers-to-onshore-oil-and-gas-and-deep-geothermal-exploration
2. The five main changes in the recently published Scottish Planning Policy relating to onshore unconventional oil and gas extraction are:
- Confirmation that the concept of buffer zones should be applied to all proposals for the first time;
- Putting in place an additional requirement for risk assessments to be prepared, using a source-pathway-receptor model, to ensure a transparent and evidence-based approach to assessing whether proposed buffer zones are acceptable;
- Making explicit that buffer zones will be assessed by the planning authority and statutory consultees, with a strong expectation that planning permission should be refused if they are unacceptable;
- Ensuring that operators are upfront about their plans and that communities are consulted on all unconventional gas developments, including close involvement in the risk assessment process;
- Requiring a fresh planning application (and public consultation) if permission was not sought for hydraulic fracturing but developers subsequently intend to undertake this process.
3. There are a number of regulators involved in the regulation of activities associated with unconventional gas:
- the licencing of onshore oil and gas activities is a reserved matter managed through the competitive bidding process for licences known as Petroleum Exploration and Development Licences (PEDL) and issued by the UK Government’s Department of Energy and Climate Change (DECC);
- Drilling operations which propose hydraulic fracturing techniques ’fracking’ require an added layer of permissions in the form of a licence under the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (CAR license). CAR licences are issued and conditioned by the Scottish Environmental Protection Agency (SEPA) who carry out a risk assessment as part of its specific obligations to evaluate risks to the water environment when assessing such applications;
- Operators must also provide details of all of the chemical additives proposed to be used in drilling and fracturing fluids to SEPA, who then use this information in their examination of any application for injection, to ensure the substances involved are of a type and at a concentration that will not cause pollution of the water environment;
- An additional layer of regulation is applied to some surface activities connected to onshore gas extraction such as refining of gas, gasification and other heat treatments, combustion or disposal of liquid or solid wastes, which are controlled by SEPA through their Pollution, Prevention and Control License (PPC);
- The Health & Safety Executive monitors unconventional gas operations from a well integrity and site safety perspective - safe working practices as required under the Health and Safety at Work Etc Act 1974, and regulations made under the Act - The Borehole Site and Operations Regulations 1995 (BSOR) and The Offshore Installations and Wells (Design and Construction, etc) Regulations 1996 (DCR);
- Any activity which intersects, disturbs or enters coal seams requires prior written authorisation from the Coal Authority;
- Any operator wishing to develop onshore gas in Scotland also needs to seek planning permission from the relevant Planning Authority, and of course the usual public notification and consultation processes apply.