Minerals in the ground automatically form part of an estate and are held together with the surface by virtue of section 205(1)(ix) of the Law of Property Act 1925 (“1925 Act”). This section includes them in the definition of “land” unless they are reserved from a transfer or conveyance in favour of a third party. In addition section 132(1) of the Land Registration Act 2002 (“2002 Act”) states that “mines and minerals” includes any strata or seam of minerals or substances in or under any land, and powers of working and getting any such minerals or substances. “Land” is defined by that section as including “mines and minerals, whether or not held with the surface”.
“Minerals” covers a wide range of inorganic materials such as stone, mineral ores, gravel, sand and china clay. Various cases have over time considered what is and is not a mineral as well as the meaning of the phrase “mines and minerals”, and often what is or isn’t a mineral turns on the specific facts.
Most interests in coal belong to the Coal Authority under the Coal Industry Act 1994 (who also have title to other mines and minerals in coal mining areas). However, as part of the Crown’s prerogative, all mines of gold and silver belong to the Crown other than, unusually, where they have been granted to a “subject”. Petroleum in its natural state is also vested in the Crown (Petroleum Act 1998). Again the Crown can grant exploration and exploitation licences.
Other minerals will belong to the party who has the benefit of the reservation. It may be difficult to discover who that party is as the registration of mines and minerals held apart from the surface is not compulsory (section 4(9), 2002 Act) except where there is a registrable disposition of such mines and minerals (section 27, 2002 Act). It is, however, possible to make a voluntary application to register mines and minerals. An index map search normally reveals registered mineral rights.
It is not unusual to discover that mines and minerals are excepted from title. This does not necessarily mean that they have in fact been mined in the past. If acting for a buyer, you should undertake appropriate searches for the area in which the property is situated to ascertain whether any mining activity has taken place or is planned.
A reservation on title (depending on its exact wording) can also include the right to search for and/or work minerals. Case law has confirmed that this is restricted to underground searching and this does not include a right to enter on the surface of the land.
If damage is caused to the owner of the land by any excavations (in the absence of specific agreement or drafting covering this eventuality) the landowner may have recourse to the natural right of support for land. Landowners benefit from a small category of natural rights that exist automatically and which do not “lie in grant”. Case law has confirmed that there is a natural right to support for land in its natural state, although not for buildings. However, the natural right of support of land only comes into play where the excavation of subjacent land causes actual disturbance or damage to the surface. It does not assist if there is only the prospect of damage.
In all cases, it is always important to consider the location of a property and whether there may be any interests lurking on or under the land that require further investigation and consideration.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.