Ownership of mines and minerals

Updated July 2010

Mines and minerals can be owned independently of surface land. Separation of surface and mines and minerals interests can occur in a number of ways which, although not necessarily apparent from the title deeds, still determine questions of ownership.

Severance of mines and minerals from the surface title can have significant consequences for the surface owner. Certain mines and minerals owners also need to be alerted to the need to protect their interest at the Land Registry. If they fail to do so, their mines and minerals rights may be lost.

How do mines and minerals become severed from the surface title?

During the 18th and 19th centuries a series of Acts of Parliament carved up and "inclosed" open fields and common land. The inclosure process sometimes reserved mines and minerals to someone other than the surface owner. Alternatively, where land was formerly part of a Manor, the mines and minerals were often retained by the Lord of the Manor and may now be owned by the Lord's successors in title.

Severance can also arise where the seller of land retains ownership of the mines and minerals. This practice was most common during the 19th and early 20th centuries.
In some parts of the country (for example the Forest of Dean and High Peak), ownership of mines and minerals is determined by local law.

How does severance affect the surface owner?

Where the mines and minerals are owned by a third party, works done by the surface owner may amount to trespass. A mines and minerals owner will often benefit from powers to win and work them. Therefore, even if the surface owner's works do not amount to trespass, they might still interfere with the exercise of these ancillary rights.

The mines and minerals owner may be able to obtain damages against the surface owner and/or an injunction to prevent further trespass or interference.

What action should the surface owner take?

Where the mines and minerals are severed, the risk to the surface owner will be influenced by the extent of the works constructed, or to be constructed, on the land together with the likelihood of the mines and minerals owner asserting its rights. Given the historic nature of some severances, the mines and minerals owner might not be aware of its ownership. Moreover, planning consent would be required for any mines and minerals working and such consent may not be forthcoming or economically viable to pursue. However, any bank providing funding is likely to require the risk of action by a mines and minerals owner to be covered by insurance or agreement with the owner.

It may be possible to obtain consent from the mines and minerals owner to any proposed works, or procure a transfer of their interest to the surface owner. This is likely to come at a cost. Alternatively, insurance against a claim by the mines and minerals owner might be available. However, the terms of any insurance policy would need to be considered carefully and any previous steps taken to identify the mines and minerals owner may affect the level of, or indeed the ability to obtain, insurance cover.

Why does a mines and minerals owner need to protect its rights?

From 13 October 2013, rights historically attached to the Lord of the Manor's title, including those relating to mines and minerals, must be protected by making an application to the Land Registry (which is free of charge if made before 13 October 2013). If the rights are not protected in this way, they may be lost when title to the surface changes.

In deciding whether to protect these rights, there is of course a cost-benefit analysis to be made. However, even if the mines and minerals rights have limited commercial value now, the position might change at some point in the future. Moreover, the value might not just be in the mines and minerals themselves, but also the worth to the surface owner of having a clean title. In the case of rights held on trust, trustees have a duty to preserve trust assets and a failure to protect the rights at the Land Registry could result in legal action by a beneficiary against the trustees.

Contributor: Kerri Ashworth

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2010. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.