Mines & Minerals: What Indeminity Insurers will assess

Sun 1st Nov 2015

Where the title to registered land is burdened by a unilateral notice that rights of mines and minerals are claimed as part of Manorial Rights, it is possible to obtain a copy of the statutory declaration filed in support from Land Registry. If the statutory declaration does not contain full information supported by evidence an application can then be made to Land Registry by the registered proprietor of the affected land to require the claimant to prove its entitlement.

Evidence will be required by The Land Registry to show that the land was formerly copyhold, that it was the custom of the manor that the lord of the manor had the rights claimed, that the rights survived the enfranchisement of the land to freehold in 1922 and that the rights had not been severed from the lordship. This technical information would be supplied by researchers who specialise in this field. Even if mineral rights exist then they will relate only to some types of minerals, as coal and oil are excluded by statute.

If the unilateral notice cannot be removed then it may be possible to obtain indemnity insurance against the risk that the rights are ever sought to be exercised. The case of Coleman and another v Ibstock Brick Ltd [2008] EWCA Civ 73 (where the conveyance of a 196 acre farm in Yorkshire was subject to an exception and reservation of minerals – the problem was a preliminary issue as to whether fireclay and brickshale would be classed as minerals.) This case demonstrates how difficult it is likely to be to establish exactly what rights can be exercised and for what purpose so it may be possible for the affected owner’s surveyor to negotiate for a small payment to be made to release them.

Indemnity insurance may be available and should be considered before any application is made to Land Registry or any approach is made to the claimant.

Title indemnity insurers will look at various factors when deciding whether to offer cover such as;-

  • the availability of Planning Permission and the worth of minerals that will not be granted permission to excavate.
  • Whether the Manorial title registered separately
  • Whether Minerals are expressly reserved on the title and if so are they identified. Some substances may be exceptional in use, in value or in character.
  • The availability of an Injunction for trespass – recent case law indicates that in some circumstances damages may be more appropriate.
  • Derogation from Grant if the land was previously sold with nothing to indicate it could not be used for housing, factories, etc and/or has been used for a purpose that interferes already.