Mineral registration programme

Properly registering existing interests - so that all parties can see and understand who owns what

Clarification on suggested links with hydraulic fracturing or "fracking"

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.

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.

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