The Infrastructure Act 2015: Fracking's key to the kingdom?

The Infrastructure Act 2015 (IA 2015) received Royal Assent on 12 February 2015 and this has had an effect on a couple of key areas connected with fracking.

No trespass at depths below 300m

Remember the age old law that to avoid a claim for trespass, permission from the landowner was needed before accessing the land? Well, that is no more when dealing with access to land at depths greater than 300m, thanks to sections 43 – 48 of the IA 2015. These sections set out new rights of use for the purposes of exploiting petroleum or deep geothermal energy at deep level, without the need to notify the landowner (unless further regulations are made in this regard). This will be welcome news for fracking operators who will now no longer have to wrangle with adverse landowners and protracted statutory controls for gaining consent to access.

Is anywhere out of bounds?

Given it will now be easier for operators to get on with the business of fracking, does the IA 2015 provide us with any safeguards? Prior to the IA 2015 receiving Royal Assent, calls were made in an Environmental Audit Committee Report for another moratorium on fracking (like Scotland has done) because it was concluded that fracking wasn’t compatible with the nation’s climate change targets, as well as posing substantial environmental and health risks.

However, calls for a moratorium were rejected and instead a suite of amends were inserted into the then Infrastructure Bill, to placate those opposed to giving fracking the go-ahead. It was hoped that these amends would help to keep some 40% of land in England safe from the potential risks of fracking. Certain areas, like Areas of Outstanding Natural Beauty, National Parks, Sites of Special Scientific Interest and Groundwater Special Protection Zones were to be free from fracking.

A crafty last minute amend in the House of Lords, however, has seen the safeguarding provisions at IA 2015 section 50, tweaked enough to remove their bite.  The legislation now states that fracking can’t take place within:

• ‘protected groundwater source areas’ or
• ‘other protected areas’.

The catch? These areas are yet to be defined - but this must be done through regulations by 31 July 2015. This means the hot potato has been thrown to the incoming government to clarify and in the meantime we have no moratorium and no clear protection.