Manorial Rights - Justice Committee Contents


3  Exercise and value of manorial rights

Evidence of use

33. The Ministry told us that it was not able to provide any evidence on the incidence or exercise of manorial rights as it did not collect such information, nor was it able to provide any evidence related to the impact of manorial rights on landowners as it had "not received such information from third parties".[60] We have not received any evidence during the course of the inquiry citing instances where the exercise of manorial rights has caused problems for landowners in recent years. The Ministry's evidence also stated that some manorial rights would have economic, social or environmental value with a real possibility that they may be exercised at some point, while others may have no realistic possibility of being exercised because of changes in the nature of the land in question. When questioned about the extent of use and exercise of manorial rights in the present day, some witnesses pointed to specific instances, particularly in relation to mines and minerals, but we were unable to garner a clear idea during our inquiry of how this translated more widely in England and Wales.[61] Professor Bray notably suggested to us that it was "… obvious that we need to have some kind of survey to find the extent of the use of the rights and categorising the rights".[62]

Consent

34. The Ministry's written evidence suggested that it may be that the nature of manorial rights itself minimises the likelihood their exercise will cause real problems to landowners:

In relation to mines and minerals the legal position is generally that the lord of the manor owns the minerals beneath the land, but the landowner's permission is needed if the person owning the rights wants to dig them up. Planning permission and other relevant regulatory permissions would also have to be obtained […] In the absence of local custom the result is that the owner of the rights and landholder can each prevent the other from exploiting the minerals. Similarly, rights to markets and fairs confer an exclusive right to hold markets and fairs within the manor but do not generally permit the holding of a market on an individual property. […] It is unclear […] on the evidence available to the department, that there are any real problems being caused by the existence of [manorial] rights to the owners of land subject to them.[63]

35. As Dr Stafford pointed out this should mean that the impact of manorial rights on the freeholder of a property will "generally be much less serious than may at first appear" because "in the vast majority of cases owners can veto access to their land so that the rights cannot be used".[64] However, in his oral evidence, Mr Jessel suggested that while the law on consent was very clear in the case of manorial mineral rights, it was less so in other cases, for example sporting rights where he claimed the position was "simply not known".[65] When we put this to Mr Coveney he agreed and stated that it would depend on the custom of the manor in each case and, if there was ever a dispute, it would ultimately be for the court to decide, on the basis of the evidence, what the custom was in each particular case.[66]

36. Lord Faulks pointed to the potential for manorial rights to have a "negative value" in relation to the law on consent-that is, the situation where neither the landowner nor the manorial rights holder can extract minerals without the other's consent being of potential value to the latter.[67] Pursuing this point in the context of future land development, Mr Towns told us that:

If a manorial lord has a demonstrable interest in the land, it is entirely his right to seek to protect his interests or to require a commercial payment to release them … much like a right of way bisecting a development, or sporting rights held in gross, third party interests need to be taken into account by developers. [68]

Types and locations of manorial rights

37. While there are no examples in the evidence received of manorial rights being exercised in urban residential areas, such as Welwyn Garden City, some of the evidence notes current use and benefits in more rural areas, particular in terms of minerals. Mr Troman said that he had "experience of several cases of manorial interests in sand and gravel deposits which have yielded in excess of [a] million pounds in royalties",[69] while the Church Commissioners' evidence stated that their manorial mineral interest extended to around 300,000 acres across various parts of the country and that the value of these interests was "substantial" with revenue generated making an important contribution to their core work.[70] Mr Towns accepted that "you cannot exercise sporting rights on a residential housing estate", while most who had registered manorial rights "generally really have an eye on minerals because you do not have to have worked the minerals. You cannot be said to have abandoned minerals simply because you have not worked them for 100 years or so. There is more value in rural property."[71] However, he also noted that, while some of his clients had taken a blanket approach to registering claims to manorial rights, others had not sought to register rights in areas of dense residential development.[72] Mr Tetlow also made the point, which is reflected to some degree in the types of cases cited in evidence during the course of the inquiry, that landowners in more rural locations are often more accepting of third parties holding rights over their land:

There is a [distinction] between rural land and urban land—it does not change hands very often. It gets passed from father to son, and in many cases it was the grandfather who enfranchised. Grandfather knew that he was not getting the minerals and that the sporting rights were reserved, and that knowledge was passed on. It was not written down anywhere and that was why it was an overriding interest. […] In many cases, when [he explained to affected members that] they had never had these rights and nothing was being taken away from them, but the people who had those rights had to register something in order to be able to keep them, they said, "That rings a bell with me. I seem to remember grandfather mentioning something about weird and wonderful rights." They accepted it and, in those circumstances, usually chose to do nothing about it.[73]

38. We therefore raised the possibility of distinguishing between the status of different types of manorial rights and the locations upon which they are held with various witnesses. The Ministry told us that making any distinction may be difficult as the "rights exist in perpetuity and the use and character of land may change over time".[74] When this point was put to Professor Bray she agreed there might be difficulties, stating that "Where you have a property right, use should not be the key factor; it should be whether you own the right". She acknowledged that in relation to the question of abolition of rights the distinction might be more applicable, an issue we consider in the next Chapter.[75]

NON-MANORIAL RIGHTS TO MINES AND MINERALS

39. In some cases there is a distinction between specific ownership rights to mines and minerals and manorial mineral rights which has added to confusion about the status of manorial rights. For example the written evidence from Mr ap Iorwerth noted a recent example of the Crown Estate registering specific rights to mines and minerals in Anglesey.[76] Both Mr Jessel and Mr Coveney clarified the distinction during oral evidence.[77] The 2002 Act preserved the overriding status of certain ownership rights to mines and minerals held apart from the surface. In many parts of England and Wales it is fairly common that one person will own the surface of the land but someone else will own the land below the surface known as the 'mines and minerals'. As the Land Registry website indicates, there are varying types of rights and ownership which can range from owning the mines and minerals outright and being able to take them away, whether or not the owner of the surface agrees, to having some rights to them that can be exercised with the agreement of the surface owner. Where someone owns the land comprising the mines and minerals below a property they will continue to own it indefinitely under the 2002 Act. They can apply to register it if they wish but do not have to and this will not affect their ownership.[78]

'FRACKING'

40. We also heard that the existence and exercise of manorial rights was occasionally linked to the extraction of shale gas and the 'fracking'[79] debate. The written evidence from The Peasants' Revolt raised the possibility that manorial rights owners might demand compensation for any extraction work that takes place in land where they own the mineral rights.[80] Mr Towns also suggested to us that there might be value related to shale gas deposits for manorial rights holders.[81] Other evidence received indicated that it would be very difficult for a manorial rights holder to obtain any value from extraction of shale gas or the provision of access for the purposes of extraction. The Ministry's evidence noted that while the precise nature of manorial rights might vary from manor to manor, "they are subject to the general law so that coal is vested in the Coal Authority and petroleum is vested in the Crown irrespective of any manorial right. Manorial rights to mines and minerals do not therefore include rights for extraction of gas or oil, including shale gas."[82] Mr Jessel looked to clarify the situation further, stating that he could not see how the manorial rights holder could extract value from authorising access for fracking as "the insertion of a pipe … is a trespass against the landowner; it is not a trespass against the lord. The lord has the proprietary right in the mineral substance … If the lord has no interest in the mineral value of the gas or oil and has no possessory right to the land [they] cannot bring trespass proceedings".[83] Lord Faulks highlighted the fact that the Infrastructure Bill, currently proceeding through Parliament, would, subject to further amendment, contain provisions related to the extraction of shale gas that were likely to provide further clarity to the situation.[84]

Conclusion

41. We acknowledge that there may be certain manorial rights, particularly those related to mines and minerals over rural land, that are of considerable and real value to the rights holders. However, we also believe that the situation whereby an individual can claim, for example, certain sporting rights over an urban residential home is anomalous. Manorial rights holders may withdraw their claims, as has happened in the case of Anglesey. We therefore encourage those claiming rights over properties in dense urban residential areas where exercise and value cannot realistically be expected, for example in some areas of Welwyn Garden City, to consider whether it may be more prudent to withdraw such claims.

42. However, we also accept the view of Professor Bray and others that, notwithstanding separate considerations in relation to abolition, to make any formal legal distinction between different types of manorial rights within the current legislative framework related to the 2002 Act would not seem workable given it is ownership not use that is the most important consideration in terms of existing property rights. Furthermore, based on the evidence received, it is our view that the exercise of manorial rights in a situation that impacts adversely upon the landowner or against their wishes will in practice be minimal because of the fact the landowner's consent is required in most cases related to manorial mine and mineral rights, and the fact that certain manorial rights could not conceivably be exercised upon urban residential land. We also believe that the situation in relation to fracking is clear, and that any link of this debate with that of manorial rights is erroneous.

43. Finally, we are surprised that neither the Ministry of Justice nor the Land Registry was able to provide any substantive evidence or information on the exercise of manorial rights in England and Wales. We recommend that the Ministry and/or the Land Registry instigate research to assess the prevalence of exercise of manorial rights in England and Wales, and the impact and value of that use.


60   Ministry of Justice (MAR0031) Back

61   See for example Q 26, Q 40, Tim Troman (MAR0016) and The Church Commissioners for England (MAR0018) Back

62   Q 52 Back

63   Ministry of Justice (MAR0031) Back

64   Dr Paul Stafford (MAR0039) Back

65   Q 53 Back

66   Qq 93-94 Back

67   Q 87 Back

68   Bond Dickinson LLP (MAR0028) Back

69   Tim Troman (MAR0016) Back

70   The Church Commissioners for England (MAR0018) Back

71   Q 39 Back

72   Q 19 Back

73   Q 21 Back

74   Ministry of Justice (MAR0031) Back

75   Q 54 Back

76   Rhun ap Iorwerth AM (MAR0026) Back

77   Qq 50, 72-73 Back

78   The Land Registry, "What are mine and mineral rights?" Back

79   Formally known as 'hydraulic fracturing'. Back

80   The Peasants' Revolt (MAR0023) Back

81   Q 31 Back

82   Ministry of Justice (MAR0031) Back

83   Q 58 Back

84   Qq 89-92 Back


 
previous page contents next page


© Parliamentary copyright 2015
Prepared 22 January 2015