Guest post: Shale gas industry exaggerated its legal powers to access land, say Yorkshire landowners

Ineos EMids seismic testing equipment UWOC 2small

Vibroseis machines or thumper trucks used by Ineos in the East Midlands for seismic testing. Photo: Used with the owner’s consent

In this guest post, Frank Colenso explains how a legal opinion has challenged the shale gas industry’s claim that it has power to access private land for exploration. The industry has simply been bluffing, he argues.

Even in the good times, the fracking industry in the United States of America was unprofitable. Too much borrowing and not enough income, never mind perpetuating climate change, extracting more fossil fuels and decimating the countryside.

Two years ago, Yorkshire Landowners was quick to support the National Trust for resisting an approach from INEOS to access Clumber Park, in Nottinghamshire, for seismic survey as a prelude to shale gas development.

Yorkshire Landowners subsequently instructed its own counsel to provide an opinion on the probability of a Petroleum Exploration and Development Licence holder acquiring a compulsory right of access through court action.

The Oil and Gas Authority helpfully provides guidance for licence holders to make such an application but notably fails to provide a similar level of guidance for the benefit of landowners unwilling to grant the access needed.

Ineos EMids seismic testing equipment UWOC

Battery and RAU equipment used for seismic testing by Ineos in the East Midlands. Photo: Used with the owner’s consent

Asked about access arrangements in May 2017, the then newly-appointed Commercial Director of INEOS Upstream, Lynn Calder, while conceding that a number of landowners were refusing permission even for seismic survey, warned:

“It is important to note that we do have some powers and at some point if we feel that there are areas which we are just not accessing then we will seek to use those powers.”

Nine months later, in February 2018, her attitude had hardened. After INEOS had begun its legal proceedings against the National Trust, she went further: “We are using powers which prevent landowners from blocking projects”.

And at the end of the same year, in December 2018, after the National Trust had withdrawn its resistance, INEOS’s Chief Operations Manager, Tom Pickering said:

“We are pleased that …… the Trust has now recognised our legal right to survey land”.

171207 seismic testing vibroseis machine Cuadrilla Resources

Vibroseis machine used for seismic testing. Photo: Cuadrilla Resources

The legal opinion obtained by the Yorkshire Landowners, challenges this level of certainty.

There are no such powers.  There are no such legal rights.  The shale gas industry had simply been bluffing.

We believe it wanted to give the impression that a demand to a landowner for access could be dealt with in two ways.  Either by voluntary consent – or by court action.

In effect, it was implying that ‘We are coming onto your land’.  A voluntary agreement would result in modest payment: a compulsory right of access achieved through court action would not.

Furthermore, the industry warned that not only would a landowner be certain to lose a court action but would end up paying all the legal costs. And as if that wasn’t bad enough, a landowner would later receive only token payment for the compulsory right of access being so difficult to obtain.

Nick Howard, of the Yorkshire Landowners, said:

“The holder of a Petroleum Exploration and Development Licence has the legal right to extract gas in a particular area, but this does not include a right of access to land – any more than it gives consent for all the other permits required before operation can commence.   Here at Castle Howard, we think it entirely reasonable to refuse access to an industry that would harm the peace, quietness and environmental integrity.”

Kenelm Storey, also of the Yorkshire Landowners, said:

“The purported rights extended to a licence holder under the Petroleum Act 1998 amount to no more than a procedural framework to apply for access.  This framework fully recognises the authority vested in a landowner to decide who comes onto his or her land.  The Act could not be clearer –

‘Nothing shall be construed as conferring … any right (to the licence holder) which he does not enjoy …. to enter on or interfere with land’.

“The shale gas industry has simply been exaggerating its power to gain access to land by using the courts.”

Provided a landowner has engaged with a licence holder, a reasonable refusal to grant access would be a robust and effective defence to any court action seeking to enforce access.

Yorkshire Landowners hope others who care for the natural environment will not be frightened into granting access for shale gas development, as the political opinion, too, is clear.

This government was elected on a manifesto commitment that they “would not support fracking unless science shows categorically that it can be done safely”.

There are enough Conservative MPs who do not believe this to be the case to negate the government’s majority. When those who would principally be affected and those who have the power to affect that result are on the same side, there is little that those who wish it otherwise can do.

  • Concerned Landowners who would like to be kept informed should contact yorkshirelandowners@gmail.com

DrillOrDrop has invited Ineos to comment on this article

Categories: Opposition, slider

35 replies »

  1. Except, Malcolm, at PNR you would find a landowner who was quite happy regarding access of Cuadrilla, but pretty unhappy about those who wanted to interfere. Perhaps your examination would just ignore that?

    • Being selective with the truth isn’t on my agenda. Shame the industry doesn’t have the same attitude.

      • I’m sure it isn’t Malcolm, but you may find the unhappy landowners are few are far between. How about the other site that prepared for fracking but did not do so-KM? So, two sites that have actually fracked, or prepared to do so, and not an unhappy landowner in sight-other than being unhappy the projects remain uncompleted.

        • We’re in agreement again Martin. Unhappy landowners will be few and far between, simply because, other than the Cuadrilla debacles, there hasn’t been any fracking and the very real risks from fracking haven’t materialised, so they’re not being left holding very expensive babies further down the line. Must be a nice little earner to be handsomely paid for letting someone drill a well, miss the target shale, then have the land fully restored. You may lose the respect of many of your neighbours, but hey, look at the bank balance.

          • Experience in East Yorkshire does not support the myth of the happy farmers.
            The farmer who started to lease the first frack site at Crawberry Hill wisely backed out so the whole planning process had to start again.
            Complaints from neighbouring farmers contributed to the eventual closure of the site.
            Neighbouring farmers and landowners were prominent in opposing the WN sites and in the Kirby Misperton campaigns.
            Families of farmers who did sign up were possibly unaware that these “temporary “ sites had 25 year leases with an option for a further 25 years.

            • Mike Potter – there are no real risks from fracking – they are just in the mind of people who are pretty clueless about the whole process. Those against fracking are no different to those spreading rubbish about the link between covid-19 and 5G

              • That of course depends whether you define fracking as the immediate moment of fracturing rock deep underground, or the whole unconventional O&G extraction and distribution process. As you specifically reference the ‘whole process’, presumably the earthquakes in Lancs and several other places, including from reinjection of fracking waste water, were just fantasies and fake news? There’s little point wasting my time going into the other risks like water or air contamination, methane leakage etc etc. Ever heard of cognitive dissonance?

                [Typo corrected at poster’s request]

                • Mike – there has never been a case of death or injury cause by earthquakes associated with fracking. There has never been a case of water contamination due to fracking. Methane leakage resulting from unconventionals has been totally exaggerated – desorption from coal is far more important. It’s a shame that renewables aren’t as safe. For example, thousands dead as a result of failure of hydroelectric dams. Maybe you should get your information from sources other than Gaslands.

                • Wonderful propaganda Simon. I’ve not seen gaslands, but any reporting of ‘facts’ depend on veracity of sources. You clearly deny a massive volume of credible peer reviewed science on all counts. Neither do you say whether you’re talking about the precise moment of fracturing rock deep underground or the whole unconventional O&G process. It’s a very important distinction don’t you agree? Haven’t there been something like 2 million wells drilled and fracked in the US…. without one single water contamination event. Wow, that really challenges the law of averages, but again depends on your definition of fracking.

                • Mike, I’ve read thousands of peer-reviewed papers on hydraulic fracturing and its environmental impacts. It’s amazing what one reads if you simply search for the different resource plays and don’t include ‘health hazard’ in your search. In the USA there have been cases of surface spills from storage pits, but they’re not allowed in the UK. It’s also the case that one needs to be a pretty good chemist to properly critically appraise much of the literature. Once could easily see how one could misinterpret much of what is written if one didn’t have a pretty strong background in organic and inorganic chemistry as well as stable isotope geochemistry.

                • Funnily enough, I’ve read many peers reviewed studies too. I find that the majority are both written and peer reviewed by people with a very specific area of expertise and therefore cover a specific and fairly narrow subject matter. I think it’s called horses for courses. If a ‘pretty strong background in organic and inorganic chemistry as well as stable isotope geochemistry’ is required knowledge, then that’s what they have. If it’s another subject, they have a different background. Seems pretty obvious to me.
                  You’ve once again studiously avoided my question, so for the last time – when you refer to the impacts and risks of fracking, do you mean the precise moment of fracturing rock deep underground or the whole unconventional O&G process? Otherwise it would be akin to saying not a single person has even died in a road traffic accident, because at the split second of the impact, all occupants of the car were still alive.

                • More importantly the benefits of fracking are all in the minds of greedy people who have failed to deliver on the promise of fracking to deliver a clean transition to a totally renewable future. No fracked gas has been produced. All that has happened is huge disruption to local communities, damage to property and to property values.
                  We also need to be mindful of the long term risks for local communities until the oil and gas industry acknowledge their responsibility for future clean up costs when existing conventional production and unconventional exploration sites are decommissioned.
                  At the moment it is a case of private profit leaving the taxpayer to pay for clean up costs of any pollution incidents when the greedy are long gone.

            • Oh, it is the neighbours now, rather than the actual landowners! And those landowners who did sign were “possibly unaware” of what they were signing!

              And as for losing respect of neighbours, that maybe the case or maybe not, but is absolutely no different to the wind turbine landowners. And of course everyone assumes landowners will pass their land on as would suit the antis argument? Well, many are confused by that and nothing should be taken for granted in that respect.

          • If you want to suggest there are very real risks, why not go the whole hog and suggest there could also be very real rewards? Always the bit that is missed, and when it is addressed, there is an attempt to smother it with Lord Browne’s speculation. It is part of the equation (yet to be determined) and the repeated attempts to ignore it simply draw attention to the importance of the issue-and is probably the major reason so many are not that concerned about fracking.

            Plenty of landowners with wind turbines who hate the things, but love the money. Some disliked by their neighbours, other neighbours who respect them for signing up-knowingly-to a nice little earner. Used to be £150k/year/turbine whether the electricity was used, or not!

            • Of course there are real rewards, but as with any ponzi scheme, they are reserved for a very select few.

              • Mike – fracking is not a Ponzi scheme. The economics haven’t been particularly great recently in the USA but that’s far more to do with the licensing system in the USA that meant companies were forced to drill a massive number of wells very quickly, which flooded the market. The good that fracking has done in the USA in terms of reduced emissions, increasing energy security, and creating cheaper energy so that US industry can now compete with the cheap goods produced in China far outweighs any losses that investors will suffer. It is also worth remembering that the technological advances created by the fracking industry will be invaluable in achieving NetZero.

  2. The Wensleys were simply given false promises of the financial rewards that were sure to come their way simply by opening the gates to Cuadrilla and waiting for the cheques to roll in whilst promoting the fracking industry!
    They weren’t the first but hopefully will be the last as the mendacious UK fracking experiment has been seen off by a combination of swarms of earthquakes and highly visible determined opposition from all quarters.
    Big ongoing problem for us locals is the Extended Well Testing programme which means trouble may be brewing deep down while Cuadrilla earn some cash by producing data for the industry and the Government!
    Obviously the pro fracking sell out Wensley family are now pariahs in their own Community! Hope they think it’s worth it.

  3. And there was Jack concerned I may hate the NT! (Except he wasn’t, but it was the standard line of hatred that is thought to excite a few.)

    Interesting, some antis try and claim how landowners have been mislead into allowing access, and then there are those who just want to insult the landowners who do.

    Not convinced either is a very endearing image to present. Says more about the antis than the landowners.

    Landowners are often astute people, not just the ones who plonked wind turbines on their land and trousered the £150k/year NET PROFIT for each one. Some of those were not too highly regarded by their Communities either. Or the ones who sold their pasture land for a solar farm, that established a change of use for the land that then allowed neighbouring fields to obtain planning permission for housing. Not too highly regarded by their Communities either.


      Your forgetting that other people on the DOD forum , most of which have been here for more than one day, CAN actually SEE your relentless hatred towards ALL who challenge the Fracking industry…

      As far as the National Trust go , your hatred kicked off the first day they stood against Ineos on Fracking …… History shows the truth , it’s all there on the forum web pages, typed by your very own keyboard warrior fingers .

      Let’s face it MARTIN , we all l know the FACTS , they are , Fracking is nothing more than an enviourmentaly damaging, climate changing , dangerous to human and animal health , debt ridden PONZI scheme . ……. Now if there’s anything you dispute in my above statement, I will be delighted to help you understand the facts with LINKS ( evidence ) from countless reputable organizations and qualified people .

      Taking note of the above , why would any person in the right mind support this type of industry ???????

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