Mines and Minerals Overview David Towns, Partner
Definitions • “Mine” – an excavation in the earth for extracting coal or other minerals • “Minerals” - a solid, naturally occurring inorganic substance; a substance obtained by mining • BUT note the legal definition is not necessarily the same…much depends on the circumstances in each case
Legal Definitions • “Mine” – the strata or space containing a mineral. Importantly, a “mine” is “land” for the purposes of the law • “Mineral” - a substance of “exceptional use, value and character” defined according to the mining, industrial and landowning vernacular in use at the relevant time: Coleman v Ibstock Brick Limited [2008] EWCA Civ 73. This won’t include gold or silver, coal or hydrocarbons
Coleman v Ibstock Brick Limited [2008] A Conveyance of land in 1921 reserved • “ ironstone and other metals and minerals ” Were brickshale and fireclay, with • economic potential, and ordinary clay reserved as “ other…minerals ”? Held: No. If it is unclear from the • instrument of reservation itself, the test is whether the substance in question was of exceptional use, value and character at the time of the reservation
Acts of Severance • Most Common: Reservation in conveyance (i.e. “… excepted and reserved to the Vendor all mines of sand, gravel, clay, stone and other minerals…” • Manorial Right to minerals – former copyhold land • Inclosure Act and/or Award – former manorial wastes and commons
Reservations in Conveyances • Land is sold but subject to a reservation • Specific substances reserved (sand, gravel, clay, stone) are unequivocally in the ownership of the reserving party – not just the substance but also the strata/space/land containing it (i.e. the “ mine ”) • Where the reservation is of “ mines and minerals ” or similar, the Coleman v Ibstock Brick tests apply
Reservations in Conveyances • Working rights – rights of entry, winning, working, removing, letting down surface – easements over the surface land • Compensation – payable to surface owner. Usually to be determined by agreement or by a defined mechanism • Not usually an entitlement to share in any royalty
Manorial Rights • Links back to the feudal system of land ownership and management:
Manorial Rights Over time, feudal service was • replaced by the payment of rent in goods and/or money Peasants acquired more secure • rights to occupy from the Lord of the Manor The occupier’s rights were • evidenced by their name being on the manorial court rolls. They held a copy: Copyholder “Copyhold” as a form of tenure • developed
Manorial Rights Enfranchisement – the Lord of the • Manor could agree with the copyholder to sell them the freehold Copyhold Act 1852 – provided a • framework for enfranchisements and automatically reserved the Lord’s minerals interests, market and fair rights and sporting rights (if any) Copyhold Act 1894 – repeated the • framework but gave copyholders the right to require enfranchisement
Manorial Rights • Law of Property Act 1922 – automatically abolished all remaining copyhold tenure from 1 January 1926 • Manorial incidents were to be phased out subject to the payment of compensation to the Lords • Manorial rights (i.e. the Lord’s interests in the minerals, markets and fairs and sporting rights) were preserved as manorial rights • Protected as overriding interests – they bound properties whether or not registered or known about
Land Registration Act 2002 • Abolished the overriding interest status of manorial rights, from 13 October 2003 • Lords of the Manor had to register a protective caution where the land is unregistered or a Unilateral Notice where it is registered • Manorial rights would be extinguished on the next transfer for value if not protected
Parliamentary Inclosure Process • The Lord of the Manor owned the copyhold lands, the demesne lands and the commons and waste land - freehold • Demesne lands were held in-hand • Commons and wastes were uncultivated open spaces • Commons were subject to the rights of residents to graze animals, take stone, take peat etc • 1600s – 1700s: Inclosure began. The idea was to improve the agricultural productivity of land • Late 1700s – 1845: Private Acts of Parliament enabled Awards by Commissioners • 1845 – General Inclosure Act enabled Awards without their own Act • The process normally extinguished common rights and allotted land freehold to already wealthy landowners, and the Lord of the Manor…
Parliamentary Inclosure Process Acts/Awards sometimes list the • substances reserved or use generic terms, or a mixture of the two Usually contain detailed working • provisions and sometimes allow surface owners to take stone for use on the land, for example Often long forgotten – people • acquiring genuine Lordship titles today may unknowingly have acquired the minerals interests over some very large areas (28,000 acre in one case!)
Registration • Mines and minerals can be registered in their own right at Land Registry with either (i) Qualified Title or (ii) Absolute Title • The process as is with any land registration. There is no need to demonstrate that there are minerals present or what the minerals in question are • Land Registry does not always notify the surface land owner
Why Bother? Minerals being worked can be • valuable – protect assets Minerals owners are often Estates • and organisations with a long- term view – want certainty and comfort of registration Superficial geology – clay, sand, • gravel could be trespassed into by surface development – potential to release value – does the title include (legally) the actual substances there? General nuisance of 3 rd party • rights to surface development – delays etc
Avoiding Problems • When looking at sites for development (or redevelopment) consider mines and minerals • If not excluded on title, don’t assume they are included • If the owner is identifiable, consider possibility of a deal • If not, consider insurance – numerous providers of indemnity policies but can be restricted to post-planning etc
Contact David Towns Partner Direct Line: 0191 211 7826 Email: david.towns@muckle-llp.com
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