Infrastructure Bill [HL]

Written evidence submitted by the National Farmers’ Union of England and Wales (NFU) (IB 26)

Evidence for Infrastructure Bill House of Commons Committee Stage: Energy and Planning

Background

 

The National Farmers’ Union of England and Wales (NFU) is the voice of British farming. We provide professional representation for our 55,000 farming members. In addition we have 32,000 countryside members with an interest in farming and rural affairs.

Energy

 

The NFU is concerned about the possible direct and indirect impacts of shale gas exploration and production, as well as issues of longer-term liabilities following decommissioning of production sites.  We are determined that our policy position on fracking should be reasonable and evidence-based, given that shale gas development in Britain is still at an early stage, with a number of different companies drilling only exploratory test wells at present. 

The mineral rights to gas and oil are held by the Crown, so farmers and growers would potentially receive income from exploration only through access rights to their land.  It is expected that shale gas interests will be relatively short-term (up to 10 or 15 years) compared with other energy diversification opportunities for farmers, although future liabilities on decommissioned fracking sites could extend for decades.  In August 2014, the NFU responded to the government consultation on 'Underground Access for the Extraction of Gas, Oil or Geothermal Energy’.  In our response we stated that

· We do not believe that unconventional oil and gas operators should gain access to underground land more easily if this is to the detriment of landowners. 

· We accept that a statutory right of access is probably needed, but this should only be on the basis that each landowner is notified that drilling is taking place underground and compensation is made individually to landowners. 

However, the NFU remains concerned that in the consultation outcome (25th September), DECC stated that its proposed policy "remains the right approach to underground access" and that "no issues have been identified that would mean that our overall policy approach is not the best available solution". In our view this overlooks the interests of farmers..

Our key 'asks' address three phases of operation (exploration, commercial extraction, aftercare):

1. A standardised process for negotiating underground access, with an agreed minimum level of compensation, as for other major infrastructure schemes

2. Effective regulation, backed by industry good practice, to minimise the impact on farmland and farming

3. Government or industry underwriting of landowner compensation and possible long-term liabilities

Under the first of these, the NFU would like to further explore special arrangements in open countryside where there are fewer than (say) three landowners involved, as opposed to DECC's proposal (for land in multiple ownership) whereby compensation is paid only to a "relevant community body" agreed by the operator.  We would also like to further clarify landowner mineral rights to resources below 300 metres depth, perhaps through planning conditions, to avoid them being "sterilised" by horizontal or diagonal drilling.  While in the phase of exploratory drilling, the NFU would also seek assurance from DECC and Defra that the Environment Agency will have the competence and resources to manage potential environmental impacts before revenues become available from commercial production.

On the question of medium-term and longer-term liabilities, we understand from the industry body UKOOG that a 'captive insurance’ vehicle is under consideration, a proposal that we would welcome if it can be implemented early enough. 

Concerning long-term liabilities for contamination from decommissioned fracking sites, the NFU has previously pointed out to DECC officials and ministers that under the 1990 Environmental Protection Act if no 'polluter' or 'knowing permitter' can be found after reasonable enquiry, then the owner or occupier of the site may be liable to pay the remediation costs.  Amendment 15 to the Infrastructure Bill (at Clause 38), which was passed in the House of Lords on 19-Nov-2014, effectively addresses this problem for landowners by releasing them from liability "for any loss or damage….unless that loss or damage is the result the landowner’s deliberate omission".  The NFU would like to see a similar exemption from liability extended to tenant farmers as ‘occupiers’ of the land. 

We also understand from discussions with the industry body UKOOG that provision of a 'captive insurance’ vehicle is under consideration, a proposal that we would welcome if it can be implemented early enough, in order to address the possible apportionment of liabilities under any circumstances where the shale gas operator no longer exists or cannot be traced by reasonable enquiry.  The only other acceptable alternative under such circumstances would be for the Government to underwrite such liabilities.

Planning

 

With respect of Part 4: 23 Nationally significant Infrastructure projects:

The bill will introduce changes to the 2008 Planning Act, which deals with the largest and most complex planning applications known as nationally significant infrastructure projects. These projects are dealt with under separate legislation currently by the Planning Inspectorate, with opportunities for public scrutiny and comment as the project detail progresses including consultations and an inquiry. These projects can impact on our members ability to farm, when they pass through their land, both during construction phase and in the longer term depending on the nature of the project.

The system does not currently allow for amendments to be easily incorporated post inquiry, which are deemed to be non-material. The introduction of legislation to allow this to happen could impact on members farms. This is because what may be deemed to be non-material with respect to the overall scale of the project, may have more significant local affects. For example a detailed change to an alignment of a project may then involve a different land parcel with new landowner of local environmental impacts.

Given the scale of these nationally significant infrastructure projects, there do need to be safeguards within any process that would allow for minor alterations to be notified to those land owners affected and for those land owners to be able to comment on the implications of the changes on their properties. This safeguard should be available both during construction and during operation. Therefore, the NFU believes that the primary legislation must incorporate the ability for consultation to take place as part of the process, notwithstanding that the actual details and procedures will follow from secondary legislation.

December 2014