Out-Law News 2 min. read

Anti-fracking protesters allowed to remain on private land until their right to appeal decided

Anti-fracking protesters who have set up camp near a test drilling site in Salford will be able to remain on the land until a decision is made about whether they can appeal the High Court's ruling that they were trespassing.

Around 60 protesters were due to be evicted from the land, known as Barton Moss, after Judge Pelling QC granted a possession order to landowners Manchester Ship Canal Developments and Peel Investments at the High Court on Monday. However, the Guardian has reported that the protesters will now be allowed to stay until there is a hearing to decide whether there are grounds for them to appeal against the order.

Property litigation expert Melissa Thompson of Pinsent Masons, the law firm behind Out-Law.com, said that there was little prospect of a successful appeal. It is only in exceptional cases that the rights of private landowners can be overridden by claims based on human rights.

The landowner has given permission for energy company iGas to carry out exploratory drilling on its land under a licence that is due to expire at the end of March. The protesters, who have claimed that this work could ultimately lead to hydraulic fracturing or 'fracking' at the site to recover gas, have been there since November. The possibility of fracking, which would require further planning and environmental permits, has previously led to protests from those who have claimed that the process can contaminate ground water and cause earthquakes.

In his High Court judgment, Judge Pelling QC dismissed claims by the protesters that moving them from the site would interfere with their European Convention on Human Rights (ECHR) rights to freedom of expression and freedom of assembly.

In line with findings in previous cases, the judge balanced the ECHR rights of the protesters with the rights of the landowners to peaceful enjoyment of their property which are also protected by the ECHR. He was unconvinced by the protesters' argument that the recovery of possession by the landowners would prevent the effective exercise of their ECHR freedoms which is what they needed to demonstrate to prevail.

"There is absolutely nothing to prevent the protesters from carrying on their protest elsewhere and / or by other means that does not involve interfering with [the property rights of the landowners], their licensees and visitors" he said.

"There is no human right to occupy land for the purposes of protest," said Thompson. "The protesters are breaking the law by doing this and at the same time are interfering with the legitimate use of the land by others. In the absence of any evidence that the protesters would be silenced through the grant of a possession order, it is quite right that the landowners' rights were given precedence."

Another argument, to the effect that evicting the protesters from the camp would interfere with their right to a home under the ECHR, could not succeed as the protesters "manifestly failed" to demonstrate that they lived on the land and in any event "there was nothing sufficiently exceptional in the facts of the case that would justify the conclusion that the [landowners'] right to peaceful enjoyment of their land should yield to the [protesters' rights to respect for a home] supposing [they] had any," said the judge. It is on this point that the protesters intend to appeal, according to the Guardian.

"Given the potential importance of shale gas to the UK's future energy needs, energy companies and other stakeholders will be concerned to ensure fracking projects are not unduly delayed by such protests," said Thompson. "Exploration works such as those at Barton Moss are critical if there is to be an opportunity for shale gas to be a success in the UK. As the UK seeks to diversify its energy mix, there will inevitably need to be a balance struck between national and local interests. However, this decision shows that objections should be made through lawful means which does not include trespassing on private land. Except in the most extreme circumstances, landowners can expect their rights to be protected and protesters evicted."

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