With fracking making headlines again, Martin Edwards offers a landowner’s guide to managing protests on controversy-hit sites
Following the recent decision to approve Cuadrilla’s plans to drill and frack four wells at its Preston New Road site between Blackpool and Preston, it seems the controversial method of gas extraction is firmly back on the government’s energy generation agenda.
However, while this verdict is likely to set the precedent for other such decisions (and with upcoming cases hitting the headlines, such as Third Energy, which was granted the first approval of this kind since 2011 for a site near Kirby Misperton), anti-fracking campaigns are at an all-time high.
In the short to medium term, this activity is likely to lead to an increase in occupational protests from anti-fracking campaigners seeking publicity. Crucially, unless a prior arrangement has been made with the exploration company, it is the sole responsibility of landowners to handle any demonstrations on their land. As a result, landowners must ensure they are aware of their own rights and ready to react lawfully to any potential disputes.
Possession orders
If an occupational protest does ensue, unless there is evidence that a crime has been committed (ie criminal damage or aggravated trespass), it is unlikely that a call to the police will assist in the removal of protesters. In most cases, landowners will be required to take court action themselves, obtaining a possession order before they can lawfully evict the protesters from their property. To do so effectively, action must be taken as soon as possible after the protest begins and proof of the legal title of the land must be presented to the court. Rather than seeking a possession order limited to the immediate site of the protest, it is often advisable for landowners to try to protect as much of their surrounding land as possible, ensuring cost-efficient enforcement and preventing protesters from simply relocating from one area of their land to another.
Human rights
In defending themselves against a possession order, protesters will most commonly try to invoke the European Convention on Human Rights (“ECHR”), specifically Article 8 (right to respect for a person’s home), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). However, existing legal precedent in this area demonstrates that claims of this nature are most likely to be rejected by the court in favour of the legal rights of private landowners to enjoy possession of their own land.
This was the case in Manchester Ship Canal Developments Ltd and another v Persons unknown and others [2014] EWHC 645 Ch; [2014] PLSCS 87. Here, a possession order was obtained against fracking protesters who had blocked Barton Moss Road, which gave access to a farm where the owners had allowed an energy company to carry out exploratory drilling connected with fracking. The judge ruled that Articles 10 and 11 did not provide a sufficient defence to the possession claim and did not justify trespassing and occupying private land in order to protest. However, the question of whether Article 8 could provide a defence for protesters on private land was left open by this case.
Article 8
Fortunately for landowners, a more recent ruling provides a degree of assurance against the possibility of protesters running an Article 8 ECHR defence – the unreported 2015 case of Amsprop Ltd v Persons unknown. This case related to a possession order sought by a private landowner who was attempting to remove a large group of protesters from a vacant department store in Piccadilly, London. The individuals in question had set up camp in the store and tried to invoke their “right to respect for a person’s home” under Article 8, in order to resist the making of a possession order. The High Court emphatically ruled in this instance, however, that a private landowner does not need to be concerned with Article 8 where his land is occupied by protesters who are trespassing.
Crucially though, this “exemption” from Article 8 does not also extend to possession orders over public land, such as that owned by a local authority, public verges or highways.
As such, private landowners who consider offering sites for test drilling would be well advised to select sites that are well within the boundaries of their own land and that are a safe distance away from public roads and neighbours – thus reducing the risk of disruption from any legal protests that may arise nearby.
Risks and rewards
While agreeing to test drilling by energy companies may ultimately prove lucrative in the event that valuable gas reserves are discovered, landowners should be aware of the potential risks and financial costs associated with fracking protests. Although securing insurance against such eventualities is rarely a practical option, with the right advice and guidance it may be possible for landowners to secure suitable indemnities from the exploration company against the cost of court proceedings, for example. Ensuring a swift and measured reaction to trespassers is essential in minimising disruption and successfully attaining a possession order to evict the protesters from private land.
Martin Edwards is head of real estate disputes at law firm Shakespeare Martineau
