In the past it was considered that an owner of land owned “everything under the sky down to the centre of the earth”. That proposition has been amended over time such that aircraft are unlikely to commit a trespass when they overfly land. Similarly, the Supreme Court came to the view in 2010 that there will be a point below the earth’s surface “at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about”.
The geothermal industry often needs to secure rights over neighbouring land at depths below the surface. The only solution to this issue has been for the industry to reach agreement with those landowners for access as the geothermal industry cannot utilise legislation available to mineral operators and oil explorers under the Mines (Working Facilities and Support) Act 1966.
Recognising this problem the Government ran a public consultation from 23 May to 15 August 2014, seeking views on a proposal designed to simplify the existing procedure for underground access when seeking to exploit oil, gas or geothermal resources.
That consultation proposed:-
i) a right of underground access to geothermal energy in land at least 300 metres below the surface;
ii) a payment in return for the right of access (£20,000 one-off payment for each unique lateral (horizontal) well that extends by more than 200 metres laterally) to a community body, not the landowner;
iii) a public notification system under which the company would outline matters such as the relevant area of underground land, coupled with details on the payment that will be made in return for the access.
The consultation resulted in 40,647 responses. 99% opposed the proposals, virtually all of those responses related to principle of fracking. In fact many responses which referred to supporting renewable energy did not comment on the benefits to geothermal renewable energy projects.
The Government published their response to the consultation responses on Underground Drilling Access on 25 September 2014 and acknowledged the large number of responses against the proposal. The Government stated however that the current process for companies wanting to gain underground access to extract geothermal energy resources is uncertain both in the time delay and potential costs, for both the company and landowner concerned. The Government therefore believes that the above proposals remain the right approach to underground access and will therefore put primary legislation before Parliament to implement the policy proposals set out in the consultation paper.
Whilst there has been some concern with geothermal energy being linked to shale proposals, the proposed new trespass laws will help the geothermal industry by making the process simpler and more certain in terms of timescale and cost.