Mineral registration programme
Properly registering existing interests - so that all parties
can see and understand who owns what
The Land Registration Act 2002 "LRA 2002" introduced far
reaching changes to English property law. Part of the rationale for
some of the changes was to make the "surface title" a more complete
record of the rights and interests that affect it (to avoid surface
owners from getting future "surprises"). One of the effects of
these changes for the Church Commissioners was that certain
historical rights and interests in mines and minerals owned in most
cases for many years and in some cases for centuries might have
been lost if not registered or otherwise protected within a strict
timeframe. The Commissioners therefore embarked on a
programme of research, registration and protection at Land
Registry. This programme does not create any new rights or
interests but is confined to researching and then properly
registering and protecting them. In due course the Land Register
will show who owns the surface and, where different, who owns the
mineral interests. This is therefore all about properly
registering and protecting existing interests so that all parties
can see and understand who owns what. These interests do
not include ownership of coal or petroleum, both of which were
nationalised, nor gold and silver, which belong to the Crown.
We would make clear that this is just a registration and
protection exercise to protect existing rights and interests made
vulnerable by the change in the law. There are no particular plans
to mine under any property. The focus is registration and
protection.
Notices from the Land Registry
The process is that we place our application with the Land
Registry. The Land Registry may then send notices to surface
owners after consulting the surface information that they have
access to. Receiving a notice from the Land Registry can be
upsetting for surface owners if they feel that "something is being
taken away". Our view is that nothing is being taken away - this is
protection of the Commissioners' existing interests. This narrative
is designed to assist those who have received such notices and we
hope that it deals with the most common misconceptions.
However, we must make very clear that we cannot advise you
on the legal or process aspects of this matter and you should, if
you feel it to be necessary, seek independent legal
advice.
Briefly in our view the register of a surface title is not a
complete picture as:
(1) It does not show all the rights and obligations
that attach to the land. The land can be subject to other matters
that are not mentioned on the register. One category of these is
called "overriding interests". An example of such an "overriding
interest" is the right to the mines and minerals below the surface
that are former manorial rights reserved to the Lord of the Manor
and which were reserved out of former copyhold land.
(2) The surface title also does not necessarily
include the mines and minerals beneath and these are often in
different ownership from the surface
Therefore receiving a notice may come as a surprise,
particularly if certain assumptions have been made, however it
doesn't mean that the true legal position is actually changing.
Surface owners who have received a B25 or B28
notice
If a surface owner has received a B25 or B28 notice from the
Land Registry then that should mean that the relevant application
is with the Land Registry and that the Land Registry is satisfied
with the Commissioners' title, subject to any legal objections that
a surface owner may have. If a surface owner who has
received a B25 or B28 notice wishes to
have a copy of the appropriate title deed, then they can email the
Land Registry at DMMinesandMineralsTeam@landregistry.gsi.gov.uk,
giving name and address and quoting surface title number. If a
surface owner believes that they have grounds for objection, they
should submit them to the Land Registry, in writing, within the
time period that the Land Registry has set out for them in their
Notice. If a valid objection is lodged, then unless the
objection can be disposed of by agreement between the parties, the
Land Registry must refer it to the Adjudicator to HM Land Registry,
who can either hold a hearing to decide the matter, or direct one
of the parties to start court proceedings.
Surface owners who have received a B133 Notice (S.117
process)
People will be familiar with the modern concepts of "freehold",
"leasehold" and "commonhold" ownership. However an earlier form of
land "ownership" - a product of the feudal system - was known as
"copyhold". In the nineteenth and early twentieth centuries this
form of ownership was felt to be archaic and not conducive to a
modern society and so opportunities were given for copyhold tenants
to convert their rights/interests into the more modern "freehold"
concept. This conversion was not a perfect process but as a result
of this process (called "enfranchisement") frequently the former
copyhold tenant would obtain the freehold of the surface and the
former copyhold landlord would retain the mine and mineral interest
beneath the surface. Before the LRA 2002 the former copyhold
landlord would only need to protect its interest by keeping a note
of its evidence - or researching as and when it needed to. However
following the LRA 2002 persons with the benefit of these
rights/interests must protect them with a Notice or Caution.
The S.117 process is not a registration of a new interest. It is
just a formal process to protect the interest that the
Commissioners have.
The registration exercise is being undertaken by the Legal
Office. The Legal Office cannot advise surface owners as we
act for the Church Commissioners.
We hope that this narrative helps to explain why it has become
necessary for the Commissioners to take this course of action. You
may also find it helpful to refer to the Land
Registry website link. There are also other Practice Guides on
the Land Registry website which may assist you.