Fracking protests in Lancashire highlight the importance of proactive measures to safeguard sensitive and vulnerable sites, explains Martin Edwards.
As fracking begins again on a site in Lancashire, oil and gas exploration company Cuadrilla has found itself faced with a serious issue.
In the early hours of the morning on the first day of activity, activists from campaign group, Reclaim the Power, blocked the entrance to the site, denying access to the workforce. While work commenced later in the day, announcements by the group continued to imply that further action was to be expected.
During any protest, problems can escalate for the landowner and any contractors if activity increases and becomes more heated around the site. So what options are available if protesters do start getting in the way of site progress?
How to get work back on track
Much of the onus is placed on the landowners and it is through collaboration with contractors and stakeholders that a solution can be found. If an occupational protest does take place and there is no evidence of criminal damage, then it is unlikely that calling the police will have any effect.
If protester activity gets to a stage where there is either trespass, interference with equipment on the land or the protesters are preventing access to the land, then the onus is on the landowner to get the ball rolling and take the matter to the courts themselves. Going down this route will result in a court order being granted, which would allow the protesters to be lawfully evicted from the property, letting work recommence on the site.
“Landowners and contractors would be wise in any event to start securing the full boundary of their site as early as possible”
Inevitably, securing a possession order will take time, and landowners would be well advised to put the wheels in motion as early as possible. In fact, following a line of cases within the last 12 months, it is now possible for owners of vulnerable land (such as fracking sites), to obtain an emergency injunction to protect their sites against the risk of trespass or other unlawful activity.
This involves obtaining a court order to protect a site against the threat of trespass before it has occurred. This type of order can be obtained even if the owner cannot identify the trespassers individually.
This case law shows an innovative approach by the courts and its application is not just restricted to fracking. The pre-emptive approach can be used widely and allows anyone with a vulnerable development site to take early preventative steps if they believe they could be under threat from protests or occupations.
Landowners and contractors would be wise in any event to start securing the full boundary of their site as early as possible, minimising the chances of a protest camp established. Doing this will also assist if any future legal action is pursued.
Generally, professional protest groups will try to defend themselves by citing Articles 10 and 11 of the European Convention of Human Rights, which relate to the right to freedom of speech and the right to freedom of assembly and association. However, established case law has shown this defence will fail, as the court is required to balance not just the protesters’ right to protest, but also the rights of other parties, which includes the landowners.
It was perhaps to be expected that starting up the fracking operation in Preston would be met with anger by activist groups. If any landowner – of either a fracking site or a vulnerable development site – faces similar issues and wishes to ensure smoother progress, then taking more decisive action through the courts would be beneficial in the long rung and should help to protect operations, staff and contractors against hold-ups by protesters.
Martin Edwards is a partner and head of property disputes at Shakespeare Martineau