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
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