Fracking: They doth protest too much?

In this update, we examine how the Court has dealt with anti-fracking protestors and other recent developments relating to hydraulic fracturing or ‘fracking’.

Fracking operators have been consistently targeted by intensive and often vitriolic protest campaigns, often involving direct action by protestors. However, the High Court has now provided a clear blueprint for fracking operators seeking to reduce the adverse impact of these protest activities.

INEOS Upstream Ltd v Persons Unknown [2017]

In July 2017, petrochemical multinational, INEOS obtained a pre-emptive, interim injunction, without notice to the protestors, to prevent a range of unlawful conduct on or near the proposed fracking sites and its offices. The matter returned to the High Court in November 2017, to establish whether or not the injunction should remain place.

On 23 November 2017, Mr Justice Morgan granted INEOS a peremptory injunction, known as a quia timet injunction (being an injunction in anticipation of a breach of a legal right), restraining a wide range of unlawful conduct by protestors. The Defendants were well known protestors, who had taken direct action against other fracking operators, and who could potentially disrupt INEOS’s activities. An interesting aspect of the case was that only the identity of two of the Defendants was known, the others were described as “Persons Unknown”.

The decision was made in anticipation of disruption by protestors to INEOS through marches, static demonstrations, obstruction of the highway or site accesses (including the tactic of “slow walking”- protestors obstruct vehicles by walking slowly in front of them), the use of lock-on type devices and office incursions or occupations, the likes of which have occurred on other fracking sites across the UK.

INEOS’s causes of action included trespass, actionable interference with private rights of way, public nuisance, harassment and conspiracy to injure by unlawful means. The protestors opposed the applications on the basis that the grant of injunctions would be disproportionate (being too broad in scope); improperly brought against persons unknown; there was no imminent and real risk of harm; and granting such injunctions would impede the Defendants’ rights to protest.

Mr Justice Morgan granted the injunctions restraining trespass, private nuisance, interference with the right of access to and from the public highway, and unlawful means conspiracy. These sorts of injunction are rare and were only granted on the grounds that there was an imminent and real risk of infringement of INEOS’s rights. Mr Justice Morgan also held that a Court considering whether to grant a final injunction would take the view that a fracking operator’s property rights should prevail over the protestors’ right to protest.

The successful application by INEOS provides a blueprint for the arguments needed to succeed with, and the evidence required to support, the application. The decision is also notable for the fact that the injunctions also covered interference with INEOS’s upstream supply chain.

R (Preston New Road Action Group) v Secretary of State for Communities and Local Government and another [2018]

The background to the appeal brought by the Preston New Road Action Group is complex and was described in detail in the 2017 Summer Edition of Agricultural Lore.

On 12 January 2018, the Court of Appeal held that the decision to grant permission for exploratory works to Cuadrilla had not involved the misconstruction or misapplication of local and national planning policies and that the environmental impact assessment had addressed all concerns adequately. The appeals were dismissed and the right to appeal the matter further to the Court of Justice of the European Union was denied, the Lord Justices deeming the contentious matters “acte clair”, with no scope for reasonable doubt.

As a result of this ruling, Cuadrilla has effectively been given the go ahead to explore the site and consequently begin the first horizontal fracking project in the UK. Cuadrilla has also been granted permission by West Sussex County Council to begin exploratory testing in Balcombe.

INEOS granted permission to pursue land access rights over National Trust land

On 22 February 2018, INEOS stated that it had been granted permission by the Oil and Gas Authority to pursue an application in the High Court, to allow access to the National Trust’s Clumber Park in Nottinghamshire. INEOS wants to carry out seismic testing on the land, but the National Trust has refused access to-date, stating:

“We have no wish for our land to play any part in extracting gas or oil”.

Lynn Calder, Commercial Director of INEOS Shale, stated:

“These surveys are both routine and necessary across the UK, including on National Trust land……The National Trust’s position is very disappointing as we have had positive relationships with a range of stakeholders and landowners during surveys”.

Conclusion

The goals of fracking operators are evidently increasing in ambition and scope. However, these developments must also be viewed in a wider context. The Government’s publication, ‘A Green Future: Our 25 Year Plan to Improve the Environment’, makes no express reference to fracking (nor does it expressly refer to renewable energy, rather the more ambiguous “cleaner, sustainable energy”). Fracking was also conspicuous by its absence in the Government’s ‘Clean Growth Strategy’, published in October 2017.

These glaring omissions dovetail with the Government’s rhetoric surrounding a proposed ‘Green Brexit’. On a more local level, fracking operators have also seen a number of their applications rejected by local councils in recent months, including an application by INEOS in South Yorkshire.

Notwithstanding this, while fracking remains a viable and active solution to a transition to a reduced carbon economy, rural landowners and others with interests in areas where shale rock is prevalent, should be aware of any developments, and familiarise themselves with the obligations of fracking operators in relation to access, payments and any restoration and aftercare of the land.

Finally, landowners, tenants and fracking operators must be aware of their options and rights in relation to any protest activities on their land; if these actions adversely affect their business, they should consider applying to the Court for an injunction.

For more information please contact Tom Williams on tom.williams@michelmores.com or 0117 906 9334.