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And at the end of the same year, in December 2018, after the National Trust had withdrawn its resistance, INEOS’s Chief Operations Manager, Tom Pickering said: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. Excellent. The government has also reiterated the correct legal position that any access to land must be agreed between the operator and landowner and that includes ancillary land. Good to have counsel opinion on this matter to give landowners the courage to stand up to the fracking industry so they exercise their rights to control development on their land. No one likes a bully. Hopefully another significant blow to the industry.

  2. Hmm. So AFTER legal proceedings were started against the NT they withdrew their objections.

    I would suggest that is a clearer explanation of the position than an opinion. (Mind you, the NT did not seem to “engage”. Suspect “engage” does not substitute for “no”. No one likes someone ignoring a perfectly standard request that has happened many times before around a particular geographical point, and has been completed many times without any significant disruption.)


      I see that deep seated hatred towards the National Trust who were firmly against Fracking on their land , still simmers within your aging bones ….

      I hope this now gives clarity and strength to landowners , that a firm two finger salute in the face of these bullies who try and push through such toxic and dangerous industries on their land . Is now a fully and acceptable way to respond back to such threats .

  3. Excellent article which adds to the picture of an industry prepared to use huge financial resources to bully landowners and the wider community.
    All property owners need to be fully aware of occupier’s liability when they give permission to others to use their land; particularly important when it comes to immediate or historic clean up costs.

  4. Perhaps Mark Mills would like to challenge your statement Martin about seismic testing being ‘……completed many times without significant disruption. ‘
    Or there again maybe he wouldn’t although his experiences can be found online if anyone cares to look them up.

  5. So it would appear that whilst Ineos were threatening legal action under the Mines (Working Facilities and Support) Act 1966, there is subsequent and more specific oil and gas legislation protecting landowners that they and the OGA conveniently ‘forgot to mention.’

  6. Well, Peter, have you spoken to landowners around Clumber Park where many such surveys have taken place? I have. They found the experience interesting and not inconvenient. But, of course, not put on the Internet. I prefer to rely upon first hand experience. There is plenty there, if you wish to access it, and most of it will state exactly what I did. The area around Clumber Park has experienced such surveys for a very long time.

    Just making a factual statement, Jack. No hatred at all. Did the NT not back down once legal action started? I know it is common for you to try and cover up the facts with some sort of emotional construction, but my post was simply reminding others of what actually happened. You may like to ignore that, or suggest it didn’t, and thus encourage others to do the same. For someone who from previous postings has very little knowledge around the NT in the UK, you make a valiant attempt to join in the discussion! However, there was NO fracking intended for Clumber Park, so be wary of what your attempts reveal! Check the details and you might learn something. If you do not want to learn anything, that’s okay too. Forgive me if I continue to try and provide the reality.

    Brent Crude moving close to $30/barrel. (Bit more of that inconvenient reality for you.) Forecast for 2021, much higher than that.

    Drop a stone in a bucket of water and watch the ripples. A short while later, surface of the water is back to the previous state. Ever thus.

    • Martin – we also need to consider natural gas prices. Gas is very cheap in the USA partly due to the large amount produced associated with liquids production from shale. The rapid drop in rig usage in the USA suggests that gas production will also fall, which one would expect to result in an increase in gas prices. Of course, the new pipeline from Russia and LNG from Qatar will keep the pressure on gas prices in Europe but with the 30% extra GHG emissions I would have thought that many would find using these supplies to be indefensible.

    • HA HA MARTIN , no more laughter please . My sides are aching.

      So let’s break down the facts and try and work this one out …

      Ineos the biggest player in the UK shale gas industry…… Why would they be wanting to do all this testing on National Trust land …

      Is it that their bored and have time on their hands ???????? Maybe it’s because they have to much money and they’re itching just to spend a little , whatever the project may be ….

      Dont make me laugh MARTIN , you must think we’re all brand new .

  7. Landowners around Clumber Park may well have found the experience of seismic testing interesting and not inconvenient because they received payment for INEOS doing so. They may well have been hoping for a good payout from leasing land for well pads too. Some people have clean air, clean water, clean food and a thriving ecosystem as their priority. Others prefer money. All down to personal taste. Perhaps they were unaware of the potential for personal liability for abandoned wells in future along with other potential costly problems from the fracking industry?
    I’m sure you have no more idea than I have precisely how the ‘engagement’ between NT and INEOS progressed, although I strongly suspect that NT told INEOS they didn’t want fracking (or anything related to it) on their land due to their environmental priorities. It would very much appear that INEOS ‘persuaded’ them into backing down with legal argumets. Interesting to hear genuine legal opinion confirming that their persuasion was actually just unfounded bullying.
    Another nail in the coffin – not much woodwork left.

  8. Oh dear, Mike. Most of the seismic testing carried out around Clumber Park was NOTHING to do with INEOS!

    Sorry, but that is the reality. If you want to make it all about INEOS, and that no other surveys have been conducted, then feel free. However, those around Clumber Park, especially landowners, will not be excited.

    So, the NT backed down due to legal arguments, without checking those legal arguments?? Maybe not a case of bullying but simply legal advice? Of course, others may wish to take different legal advice and test that. Not always successful for the antis, is it?

    • It’s quite irrelevant who was doing the seismic testing as I’ve not doubt it was all about collectively mapping the geology to a degree that would allow individual PEDL owners to frack. Whether or not that mapping was/is sufficiently robust is another matter. It only needs enough justification to get past the OGA, EA, HSE etc. https://phys.org/news/2020-05-reveals-full-impact-faulting-shale.html
      Agreed, it would appear the NT backed down without checking those legal arguments. I have no doubt they have more urgent calls on their limited funds than highly expensive lawyers. So maybe deliberate bullying by INEOS, enthusiastically backed by others and perhaps coordinated by UKOOG, in the hope that nobody would call their bluff. It nearly worked… but not quite. Not always successful for the pro’s is it? In fact, I’ve yet to see any success after about 8 years of looking.

  9. Wrong again, Mike. The seismic testing was NOTHING to do with fracking either! Perhaps you should maintain some doubts when you are unaware of the details?

    Not agreed. I suspect NT did receive legal advice before they backed down.

    Now, I can understand your desire to stop mapping of underlying geology. However, if INEOS, or others, want any support for doing that then there are a number within Ruth’s report of 3rd May stating that MORE should be done. Maybe INEOS have made note of such support if they have to go the legal route again? Not meaning to be awkward, but I suspect the weight of their support for MORE mapping of underlying geology may be quite a useful legal argument.

    • Oh, silly me. Of course the seismic testing was NOTHING to do with fracking Martin, because there hasn’t been any fracking has there – leaving aside the two debacles of Cuadrilla’s vast expertise in the essential geology and critical faulting of W Lancs. Self inflicted incompetence. The rest of the fracking brigade must love them. Obviously, those O&G exploration companies were just conducting seismic testing out of the goodness of their hearts and to generously map out the UK geology for everyone’s benefit. What a pity that the mapping wasn’t quite good enough to find the shale at Tinker Lane. That must have cost investors a few bob.
      You may suspect that NT received legal advice before backing down, but in reality, you have as much idea as I have, unless their internal decisions is another of your areas of expertise.
      It’s interesting how many times you, and others, assign views to me that I don’t hold and have never even alluded to. Why should I have any desire to stop mapping of underlying geology if it can be of practical use? As long as landowners are willing to grant them access to do so voluntarily, can trust their motives and know exactly what they’re letting themselves in for.

  10. Perhaps a detailed examination is now needed on how access at every unconventional onshore fossil fuel exploration site in the UK was acquired. We may find we have a lot of very unhappy landowners who believed they had no choice.

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