Fracking raises groundbreaking questions by Michael Sheridan, secretary of the Scottish Law Agents Society, February 10, 2014, The Scotsman
Ownership boundaries can’t dig into the planet without treading on the rights of other descending boundaries, says Michael Sheridan. Though I have not yet seen any maps of the prospective fracking operations across Scotland, for a particular reason I would relish a Scottish debate of the issue. This is because it might bring to resolution a legal issue which has troubled me for nearly half a century.
When I studied the law of property in the 1960s, I learned that the owner of a plot of land owned that land a coelo usque ad centrum, or from the heavens to the centre of the Earth. This implies ownership of the airspace above the land and the earth below the land both for indefinite distances within the boundaries delineated on the surface of the land.
That principle, as I understand, subject to important exceptions, remains as part of our modern inheritance from Roman law. It is a useful rule which determines the ownership of minerals and allows an owner to remove branches overhanging from a neighbour’s tree. Nevertheless, it also implies ownership indefinitely up the way and down the way from the area delineated on the surface. The principle of ownership indefinitely up the way conflicted in due course with the advent of air travel. That issue was easily resolved by legislation which superseded the private law principle. That was in days when the sovereignty or supremacy of parliament over all other sources of law was generally accepted.
Similarly, ownership indefinitely down the way conflicted with nationalised coal mining, the laying of joined-up telecommunications services and electric cables and water and drainage transmission. The concept of public utilities was imposed in the public interest to which private rights were obliged to give way.
One imagines that similar statutory authority might be a readily available to enable fracking to proceed – in the public interest of cheaper energy. These operations take place, as I understand, at about one kilometre below the land surface which raises the question as to where any subterranean boundaries are to be found. However, there have been significant changes since the days when parliament commandeered private airspace and subterranean property in the public interests of air travel and coal mining respectively.
In the first place, we now have, for better or worse, the statutory recognition of human rights, set out in the European Convention of Human Rights which protects the peaceful enjoyment of private property. Any new UK legislative derogation of private property rights has to overcome not only the elderly and possibly frail resistance of Roman legal principle but also the youthful vigour of modern statutory protection of these rights.
Secondly, the very principle of parliamentary sovereignty has been challenged in recent years. In some cases, the courts have struck out sections of legislation as being incompatible with principle. Legislative authorisation of the fracking of private property may be open to similar challenge.
Thirdly, it is much less obvious nowadays that the public interest is served by howking out and burning finite, natural resources. Some argue that the fracking operation in itself is likely to damage the planet. It is probably not in dispute that mankind in recent years has exploited other natural resources almost to extinction and continues to do so to oil and coal. The fracking of deeper resources might be seen as simply pushing the problem of sustainability along a generation or so.
Let us assume therefore that fracking proposals are contested on the principle of ownership a coelo usque ad centrum. That brings me back to the problem which troubled me in my student days. My thought was that, if ownership extended down to the centre of the Earth, then that would work only on a flat earth. Subsequent enquiry, however, confirmed long-standing theory that the Earth is not flat but spherical.
If this theory is correct, then ownership boundaries cannot descend into the planet without immediately transgressing other descending boundaries. This theory would succeed on a spherical planet only if the descent were angled in each case towards the centre of the planet. The use of the word centrum implies insight into the spherical nature of the planet. However, the principle makes no provision for the reduction of the areas of ownership as the boundaries descend and I am not aware of any case law which addresses the issue.
The issue, in the opinion of one law student, was open for resolution in the future. Is fracking that future? [Emphasis added]