Legal title documents sometimes contain historic rights which appear to bear little or no relation to modern life. It is common to find conveyances dated in the 19^th and early 20^th centuries which contain exceptions and reservations of mines and minerals.

Law textbooks tell us that ownership of land includes ownership of the airspace above ground level, and also the soil underneath it.

There is a distinction between “surface owners” and “ground owners”.  Rights to a piece of land (belonging to the surface owner) and to the minerals that are beneath it (belonging to the ground owner) can be owned by different people.  It is not easy to find out who the ground owners are, and disputes related to this area can sometimes lead to developers facing trespass claims.

Star Energy UK Onshore Ltd  v Bocardo SA [2009] EWCA Civ 579

In the case of Star Energy UK Onshore Ltd  v Bocardo SA [2009] EWCA Civ 579, the Court of Appeal confirmed the existence of an actionable trespass onto land by an oil company, Star Energy, when the company, who were extracting oil and gas at a level of 800ft below sea level, drilled wells close to the boundary of Bocardo’s estate and included pipelines passing beneath Bocardo’s land.  Despite the depth of the incursion the court confirmed that there was an actionable trespass.  Damages were therefore awarded.

The relevance to property developers is that the Court of Appeal confirmed in this case that an incursion below ground level is as much a trespass as an incursion on, or above, the ground.

The LPA 1925 defines “land” as including “land of any tenure, and mines and minerals, whether or not held apart from the surface…”  The presumption is therefore that that mines and minerals are vested in the registered or unregistered proprietor.  However, if there has been a mineral severance (where the mines and minerals or the rights to obtain the same have become vested in someone else) this presumption is rebutted.

There are four situations in which mineral rights can be severed.  These are:

1. The rights are sold – the rights can be sold by a freehold owner separately from the land itself. 
2. They belong to someone else due to statute – e.g. oil, gas, coal, gold and silver are vested in the Crown.
3. Custom and practice – this is the case in parts of Cornwall, Derbyshire and the Forest of Dean.
4. Manorial Rights – these are feudal rights retained by the Lord of the Manor who has previously not sold a freehold to a piece of land but a “copyhold”, which ensures some rights are retained.  These include mineral rights.  These rights will disappear the next time land is sold unless they are protected by registration against the surface owner’s title.  Rather unhelpfully, the Land Registry has said that they will continue to register notices to protect manorial rights even after an acquisition for value.  The registered owner must object and apply to remove the notice.

Mineral owners are becoming increasingly assertive at claiming trespass for any foundation works, service installation or road building.  Due to this developers need to consider mineral ownership in every development.

There are specific searches which should be carried out prior to purchasing land for development and legal advice should be sought in relation to these and in relation to getting indemnities from sellers or title insurance.