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What’s the Fracking Problem?

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

Britain is preparing for huge infrastructural changes in the next twenty-years following the Government’s Nationally Significant Infrastructure Projects (NSIP) regime. Hydraulic fracturing, more commonly known as ‘fracking’, has caused considerable controversy. For those wishing to know more of the process of fracking (and the dangers) then this website does so neatly. Whilst the environmental dangers of fracking are counterpoised by the Government’s retort of a successful fracking industry in America, a legal consideration of fracking is beginning. Notably, it is to be considered whether land law creates a fracking problem.

Following the proposals for fracking, there has been a surge in the number of landowners registering their rights to the minerals (excluding oil and gas, which belong to the Crown) underneath the land of which they have an interest in. These landowners, or “Lords of the Manor”, are simply exercising and registering their manorial rights. The reason for the surge is not solely connected to the proposals of fracking; s. 117(1) of the Land Registration Act 2002 determined that manorial rights will lose their status as overriding interests unless they have been registered, and thus protected, by midnight 12th October 2013 (being ten-years since the 2002 Act came into force). This provision demonstrates the 2002 Act’s objective of providing a conclusive register of title, which was explored in my previous article.

It would be useful to backtrack for a moment and explain, firstly, how these “Lords of the Manor” acquired these manorial rights and, secondly, to explain overriding interests.

Lords of the Manor: the basic understanding of land law is that title to all land in England has derived from the Crown. The highest ownership that can be given is an estate in the land, known as the fee simple, which allows for the owner’s full enjoyment of the land for an unlimited period of time.

However, lords of the manor have a superior freehold estate in fee simple, which results from the distribution of land seen under the feudal system, dating back to 1066 and the arrival of William the Conqueror. Upon William’s claiming ownership of all the land in England, he proceeded to distribute the land to tenants in chief, who in return would provide services to the King (i.e. military supplies).

The land held by tenants in chief was then divided into manors, which would be distributed to men who promised, for example, to serve as knights (i.e. assisting in the condition upon which the land was originally distributed to the tenant in chief). Those who had been granted a manor are known as tenants in demesne.

The owners of the manors are entitled to refer to themselves as Lord of the manor, which demonstrated their ownership over the manorial land. Importantly, this carried with it manorial rights, and these were kept by the lord on the disposal of parts of the manorial land, and could include, for example, the minerals found in the manorial land (see point of the Land Registry Practice Guide 66).

Since the feudal system has long been a matter of legal past, and the method of conveyancing seen today has been present since Quia Emptores 1290, the ability for Lords of the Manor to enforce their manorial rights seem obsolescent considering the reciprocal benefit of the title is no longer adhered to (i.e. the provision of a service to the crown).

Overriding Interests: estates, rights and interests that are not protected in the Land Register, but which override first registration of title and therefore bind the first registered proprietor. Manorial rights fall into the category of overriding interests (see Schedule 1 of the LRA 2002). The archaic nature of the manorial rights juxtaposed with the objective of the LRA 2002 stated above, demonstrates why s. 117(1) of the LRA 2002 sought to eradicate their overriding status unless registered by midnight on 12th October 2013.

Manorial rights that have failed to be registered before the time limit means that upon the registration of title by the first registered proprietor will be free from the manorial interest. This will further mean that any registrable disposition of the estate thereon will similarly be free of the manorial right. (The effect of this deadline, and the approach it makes to providing a clearer and conclusive register of title is succinctly enunciated by Cousins, Edward F ‘The Land Registration Act 2002: the registration of franchises and manorial rights’ Conv. (2013) 2 129-139.)

Where a manorial right has been registered, then the manorial right ceases to be an overriding interest, and is now protected on the register as a notice against title. Therefore homeowners whose house is situated upon the Lord of the Manor’s land, and where the Lord of the Manor has registered their manorial interest before midnight on 12th October 2013, will have received a notice (following s. 50 LRA 2002) of this right affecting their land.

Although the realization of the manorial right may be a surprise to a fee simple owner, the enforcement of the manorial right, despite being archaic, is merely the legal application and protection of an interest in land.

A problem that is likely to occur, however (should fracking be given the go-ahead), is whether title to the subsurface of the land concerned is vested in the surface owner, or in the mineral owner. This question would be likely to arise when the mechanics of the fracking are installed and in determining the location of gas storage vessels (see Morgan J ‘Digging deep: property rights in subterranean space and the challenge of carbon capture and storage ICLQ (2013) 62(4), 813-817 for a breakdown of the logistical impact of fracking in this regard).

Cue the thought of every law student: cuius est solum, eius est usque ad coelum et ad inferos (he who owns the soil owns also up to the heavens and down to the centre of the earth). Cue thereon the understanding of the limitation of this ‘absurdity’ of the common law, and that the principle is subject to limitations that still facilitate for the reasonable enjoyment of one’s land. Avoiding the absurdities of which that brocard insinuates, Cozens Hardy MR in Mitchell v Mosley reasonably held that

‘[T]he grant of the land includes the surfaces and all the is supra – houses, trees, and the like… and all that is infra, i.e., mines, earth, clay…’

There has been a plethora of case law attempting to determine the reasonable enjoyment of land. In the decision of the Supreme Court in Bocardo SA v Star Energy UK Onshore Ltd & Anor there was specific reference to the determination as to whether the title to the subsurface is vested in the landowner or the mineral owner. The Supreme Court held that the owner of the land was the owner of the strata beneath it, including the minerals which were to be found there, unless there had been an alienation of it by a conveyance, at common law, or by statute to someone else.

Accordingly, the manorial rights, as discussed above, which have created an alienation of the minerals that would be extracted from fracking, would belong the Lord of the Manor (if the right has been duly registered). However, and in accordance with Cozens Hardy’s above-quoted dictum referring to the ‘grant of the land’, the Supreme Court held (as summarized neatly by Peter Smith J at paragraph [53] of his judgment in the Court of Appeal):

[I]n my view after the oil is severed from the surface owner there can be no question of any claim for trespass arising out of the removal of such property because it belongs to the Crown. There remains nevertheless the secondary trespass namely access to enable it to be removed. It was a trespass before severance and I cannot see how it cannot remain a trespass afterwards.

Accordingly, any work that is being carried out to facilitate the mechanics of the fracking procedure will need to be aware of the trespass that could be committed. That, therefore, can create a real fracking problem.

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Tagged: Commercial Law, Property Law

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