Oral evidence: Manorial Rights, HC 657Wednesday 15 October 2014

Oral evidence, 15 October 2014.

Witnesses

David Towns, Director, Bond Dickinson LLP, Roger Tetlow, Senior Legal Adviser, Country Land and Business Association, and Timothy Troman, Chartered Mineral Surveyor, Wardell Armstrong LLP, gave evidence.

Chair

Mr Troman, Mr Towns and Mr Tetlow, welcome to all of you. We are grateful for your help this morning and the benefit of your experience of dealing with claims of this kind. We look forward to being wiser by the end of this session than we are at the beginning of it.

Andy McDonald

Good morning, gentlemen. Perhaps I could direct this question to Mr Towns and Mr Troman in the first instance. Could you outline your role and work assisting clients on registering their manorial rights since the 2002 Act, and tell us what those clients’ motivation?

David Towns

Yes, certainly. My role has been to assist clients in reviewing whether or not initially they had any of these potential rights, any lordships, and whether or not they could demonstrate that they were still lord of the manor, and then putting them in contact with researchers, who would then undertake research projects in being able to establish the rights. Generally, what that is doing is finding whether there is any land within a manor that this client can identify as being owned by them. Is there any land within that that is known as former copyhold, which is former part and parcel of the manor, and which was enfranchised with a reservation of rights? That could either be because the lord and the tenant agreed at the time that there would be reservation of rights, or was by reference to one of the enfranchisement Acts automatically under the 1922 Act. We would then co‑ordinate that research. The research would come up with evidence of the land being former copyhold and then unilateral notices or cautions would be applied for. With regard to the motivations for doing that in many of my clients’ cases, it is not about greed or wanting to enforce ancient rights necessarily. It is largely because they are either charitable organisations or because the estates are held by trustees, and the legal advice that they were receiving at the time was, “You have something that could be potentially an asset. You have a fiduciary duty as a trustee or you have a duty under the Charities Act to protect those assets from extinguishment.” Different clients take different approaches. Some said, “We will have a blanket approach. We will apply for rights wherever possible.” Others have a more targeted approach, but, generally, their motives are because they felt bound to do this by the 2002 Act.

Andy McDonald

Do any of your clients, once they discover these rights exist and see where they visit, say, “I am not pursuing that. I am going to abandon those,” and extinguish them?

David Towns

Some clients, as I say, took a blanket approach to this; others took a different approach where they thought, “Perhaps we won’t seek to register these rights in areas of dense residential development.”

Timothy Troman

That has been my experience as well. Speaking as a chartered surveyor rather than a lawyer, my role really has been to draw clients’ attention to this Act in 2002 and say, “Look, you have 10 years to do something about this.” Many of our clients left it very much to the last minute, which is why you have this glut of registrations towards the end of the 10-year period. They are obviously quite entitled to do this at the beginning, but many chose not to because of the perceived cost of doing it. As we got closer to the deadline, we obviously continued to point out that, if they did not register, there was a chance they would lose these rights, so that is what they did. It was a case of referring our clients to David and his colleagues to register them.

Andy McDonald

Do you identify any major shortcomings in the Act in relation to manorial rights? Could you give us a view about whether that is so?

David Towns

We have heard evidence this morning from the first panel about the lack of information that the Land Registry gives out. That is an issue, and I do appreciate that that is correct. As a firm, we have acted to provide additional information which the Land Registry has sent out with notices because we felt that they were not giving sufficient information. In terms of the Act itself, my view is that using a unilateral notice, which was an existing mechanism that lawyers can use to protect option agreements and contracts, is a fairly aggressive thing to use, because, by its nature being unilateral, the Land Registry will register it without any proof. It is a bit like getting an interim injunction; you get it and then you argue your case. Using unilateral notices was wrong. As Ms White mentioned, it goes in the charges register. Some solicitors who are not used to seeing that think it is a legal charge. They think it is something to do with the financial charges. You have many titles in the country. The Land Registry says there are about 116,500 titles which have an existing note, so when this land was first registered the Land Registry saw that it was former copyhold and they have put a note in the property register, which is just the descriptive part, saying, “This land is former copyhold and subject to reserved manorial rights.” When this legislation first came out I thought that is what we would be applying to do—to put that kind of standard entry in the property register. Doing that would have been a far better approach, or perhaps creating a new manorial rights notice which you then apply for, rather than trying to shoehorn something as complicated as this into an existing method.

Andy McDonald

What is your experience of resolving disputes with landowners? Could you tell us a little bit about that? Where do they end up? How are they resolved? What is your experience?

Timothy Troman

To be honest, none whatsoever. There have been cases I am aware of, but, as surveyors, we have not been involved in that side of things.

David Towns

As a firm, we have applied for approximately 8,000 unilateral notices. A few we have agreed to withdraw, but not many. I know some firms have taken a different approach. Our approach was that we will not apply for anything unless we are absolutely sure. Yes, there have been issues with mapping, and trying to translate very ancient maps on to modern mapping has been difficult. So there have been cases where we have agreed for notices to be taken off or we have proactively taken them off ourselves, but out of 8,000 we have had fewer than 10 cases which are going to tribunal.

Roger Tetlow

My experience at the CLA has mostly been with landowners receiving these notices. They are not necessarily lords of the manor any longer who own these rights, but the persons who own these rights have their own legal representatives and have used their own solicitors to make registrations. I have been receiving inquiries, as I work in the advisory service, from members who have received these notices. I have to say that at the start, when I first received these notices, I did not actually know an awful lot of what it meant. You are not taught this at law college. When I looked into it a little further and began to understand the nature of the rights, and the fact that the rights are not exercisable by the lord at his will but require the co‑operation of the owner of the surface land, I was able to say, “In reality, this registration is not particularly critical or damaging to you. There would have to be a co‑operative process before anything is extracted.” The notice that the Land Registry started sending out was fairly scary. It was not written for lay people and it immediately meant that people felt they had to go and see a solicitor, which was unsatisfactory to my mind. The other thing you have to bear in mind is that in many cases with rural land—there is a big distinction, I feel, 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. It did not need to be registered or it was not registered. In many cases, when I explained 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. The other thing that I did not like was the idea that the Land Registry suggested that people who received the notices had to do something within a very short period of time. That is not the case at all. Anyone who puts on a unilateral notice can put it on. The Land Registry do not assess it particularly at all because they are a registration body. They do what they are asked to do, but the person who has a notice served on them at any time after that, whenever they have the time or the energy or the evidence to be able to rebut it, can at that stage go back and serve a UN4 saying, “I contest this application.”

Andy McDonald

But should it ever get that far, where somebody can unilaterally put an entry into the charges register of a property that impacts upon, or is an encumbrance on, that property and the ability of that freeholder? When I went to law school, it was to the heavens and to the centre of the earth—that was the property—and they cannot trade on it.

Roger Tetlow

That is not always the case because, of course, there will always be people who sever rights. If you sell land, you can sever the rights. I agree with David that it was not a good idea to put it in the charges register. It would have been better to have just been placed in the property register.

Andy McDonald

Can we just expand on that a little bit? Is there anything else that we can do, short of abolition, that would assist? We have talked about putting it in the property register as opposed to the charges register. What about the burden of proof that we have heard about today? It seems quite ludicrous that somebody can come up with some vague and indeterminate map from 300 or 400 years ago and suddenly it encompasses a vast swathe of residential properties.

David Towns

I see this from both sides because I act for landowners and I act for manorial lords. In the one case I have taken to tribunal we have just successfully had the unilateral notices taken off because of the poor-quality evidence submitted by the lord of the manor. They had to admit that they could not produce anything else or anything better, so the tribunal has taken a very proactive role in that and said, “We will just dismiss it,” fairly early on. This is part of the problem with using a unilateral notice. As we have said, it is unilateral. It goes on. Then there is an argument. That might cause a problem if there is a transaction happening with that property at the time that worries a buyer or worries a lender. The problem about evidence is where, yes, certain applications have gone in where the evidence is of poor quality. That does not mean that all applications then are deficient. Certainly, in regard to the applications I have put in, I would not have made them if I was not confident that the evidence that the researchers had found, which I had reviewed, did what it was meant to do. The Act does not say you have to demonstrate that you have certain rights. What it says is you have to demonstrate that the land is former copyhold and was enfranchised with a reference to one of the Acts, or a private agreement between the lord and the tenant.

Timothy Troman

That has certainly been my experience. Clients have asked us what sort of evidence is required. You have to look at the compensation agreements that were entered into and deeds of enfranchisement. You cannot just simply say, “That is the manor; we will draw a line around it and claim the rights in there.” That simply would not stack up. The Land Registry made it fairly clear early on in this process that they just would not accept that sort of evidence.

Andy McDonald

What is the provable route? Is evidence being presented to the Land Registry that proves the existence of the rights and that is why it appears on the face of it?

Timothy Troman

Yes, absolutely; yes.

David Towns

The evidence, though, is generally sent after the unilateral notices have been placed on. You can send it first off, but, as Roger said, in terms of dealing with the unilateral notices, the Land Registry just does what it is asked in this case. It does not review any evidence; it just puts the unilateral notice on and then tells the parties that they have done that.

Timothy Troman

It shows my slight divorce from that part of it in that that is the evidence. I assume that the person who receives that notice could challenge it by asking to see the evidence, and if there is no evidence then it would have to be withdrawn.

Andy McDonald

Would you agree that at the very least we should abolish the practice of unilateral notices?

David Towns

When the process kicked off, I would have thought it better that you would make an application with your evidence to apply to have what I call a standard entry put on to the property register. Essentially, when you register land at the Land Registry you send in a bundle of title deeds, which should include everything you have that relates to your property. The Land Registry then makes a decision what it will note. If it is evident from those title deeds that the land is former copyhold, it will make a note, and it is still doing that today despite the deadline passing. It will make that note. Essentially, what you are doing by producing the compensation agreement and the deed of enfranchisement—that is your evidence—is saying, “Here is a missing title document from your deeds.” The Land Registry would then advise the owner, “We are going to make an amendment to your title to add this on,” and give them an opportunity to dispute that. The Land Registry could then review the evidence themselves and could say to the homeowner, “Actually, this is pretty solid; this is what we are going to do,” but still give them an opportunity to object.

Mr Llwyd

Could you give us some examples of how in the present day manorial rights are being exercised, both in non‑residential rural locations and, also, urban residential areas?

Timothy Troman

Shall I kick off with mineral rights, which is obviously my specialist field? I do not really deal with any other type of rights. There are a number of leases to aggregate companies throughout the UK. A particular experience I had is in the Trent Valley, where we have a number of sand and gravel sites where the title has been investigated and found to be manorial, but it is pretty much universal. I would not say absolutely every case, but in almost all cases, notwithstanding that the lord of the manor can claim ownership to the minerals—and that includes sand and gravel in these cases—they cannot extract them without the surface owner’s consent. There is an absolute bar on extraction without the surface owner’s consent—the freeholder. Therefore, in those instances, there will be a division of the royalties that are payable by 50%. The surface owner will get half and the mineral owner will get half. If either party disagrees with extraction, it does not happen. Those agreements can be worth, over a period of time, several million pounds and loyalties pass.

Mr Llwyd

There are several areas where the Crown has in fact registered large tracks of land, are there not?

Timothy Troman

Absolutely, yes.

Mr Llwyd

It is your understanding, I take it, that manorial rights are not exercisable without consent of the landowner.

Timothy Troman

Certainly mineral rights are not. I am not sure about sporting or fishing.

Roger Tetlow

I think it is the same.

Mr Llwyd

Is it?

Roger Tetlow

Yes

Mr Llwyd

All three of you, in your written evidence, note the potential value of manorial rights. How do you envisage your clients or members exercising these rights in the future and potentially extracting financial value out of them?

David Towns

If I can start, it is not always necessarily about wanting to exercise them. As you say, there is a two‑way process and you are in a position where you can stop something from happening. There is potential there for value because you have a right to veto something. There is also potential there, in effect, to do some good. If there is a new landfill site opening and the locals don’t like it, you might have the power to say, “No landfill here, thanks. We don’t want that.” It is not just positively exercising them; there is refusing permission to allow someone else to do something.

Mr Llwyd

Right.

Roger Tetlow

I do not have any personal experience of this at all, but I do think that in the past it has more been the case that the owner of the surface ground has wanted to do something or may have made an application for mining or minerals, and at that point the lord of the manor has reminded him that they belong to him. Then they would enter into a negotiation and involve a surveyor in working out how they distribute any profits.

Mr Llwyd

Mr Towns, in your written evidence you note examples of rights being of particular value in the present day. How does the situation differ between specific manorial rights and certain rights to mines and minerals that have remained overriding following the 2002 Act?

David Towns

What I am getting at in the submission is that there are potential sporting rights. If you have a large farm that was enfranchised that is still a large farm today, there is potential to exercise those sporting rights. The farmer may wish to purchase those sporting rights. They may want to be bought as a block to be added to another sporting estate. So there is always potential there for those to have value. Not many, in my experience, but some lords of the manor still have exclusive rights to markets and fairs. Most of these rights were bought up by local authorities in the late 1800s to the early 20th century because of health and safety laws, and somebody had to take charge of who was selling what and what have you in the markets. Some of these rights still exist and can be very valuable, because you can receive fees for permitting markets within your exclusive jurisdiction. That does not mean you have the right to hold a market on somebody’s land. You do not have the right to hold a market in somebody’s front garden. It is about a jurisdictional point. They could be worth many hundreds of thousands of pounds if a local authority or investor wanted to purchase them. In terms of mining, we have heard that minerals in situ with no prospect of being able to extract them probably have very little value at all, but there are minerals today that are incredibly valuable that 50 years ago were thought worthless because of changing technology. There are new forms of energy production, fracking and the like, which are going to involve very deep drilling. Obviously, the Government are considering their position in terms of minerals trespass in terms of fracking. These are interests about which the lord of the manor may still be able to say, “I have a compensatable interest in terms of these schemes.” It is not really about trying to extract value necessarily from surface; it is about all these different interacting rights.

Mr Llwyd

Mr Towns, in your evidence you note that in relation to land development, it would be entirely the right of the person in charge of manorial rights “to seek to protect his interests or to require a commercial payment to release them.” Has this occurred, or do you believe that this could become an increasing occurrence in the future? I suspect part of the answer has been given to me already by Mr Towns.

David Towns

I think you have quoted from my submission.

Mr Llwyd

I did, yes; I am sorry.

David Towns

Again, I look at these rights as any other property right. I have referred in the submission to rights of way. A right of way has a demonstrable benefit to another property, but if you have an alternative access to your property, and you do not really tend to use this other access, nobody could say, “Take it away then. You don’t need it.” It is not necessarily about need. If somebody wished to develop that land and they find that there is a right of way over it, the person with the benefit of the right of way, even though they do not really use it, is not very likely to say, “Fine, I will just agree to extinguish that right so that you can develop the land and make an enormous commercial profit.” That right would be bought out. Restrictive covenants exist that are bought out. There are ransom strips for access. They have to be bought out. It is an ordinary part of the commercial property world. We heard this morning that, if you have a right of way, both parties have agreed to that. In terms of manorial rights, both parties agreed to it. There was an enfranchisement and the tenant accepted reservation by reference to one of the Acts or accepted the specific terms in that indenture; it just so happened it was many, many years ago.

Chair

You made an important point earlier, though, when you said that, if you are a charity or a trust and you allow the extinguishing of the right and it has a potential value, you might be advised that you were in breach of your duties.

David Towns

Yes. Trustees could be personally liable if they have allowed something that they did not recognise as an opportunity today that might be an opportunity next year or in 10 years’ time.

Chair

Rights of light are the classic for that, are they not?

Mr Llwyd

What do you say to my earlier thesis that possibly one reason why we are in this position with regard to manorial rights is that, for example, the regime of registering rights to grazing and ownership under the 1965 Act, and rights of turbary, piscary and so on, all seem to be working quite well under that Act—that part of the regime? On the other side we have this, and we have a ridiculous situation where sporting rights might exist in Welwyn Garden City, for heaven’s sake. Could that be a reason why we have not had any real reform?

Roger Tetlow

We are probably here for three reasons. The first was that a lot of landowners thought, “Oh God, I have 10 years to do this. I will put it off to another day,” so it was all left until the 11th hour. The second was that at the same time fracking became very big in the papers, and the first thing that I would have said when people rang me with a worry over this was, “Is this connected with fracking?” Of course it is not, but that was another thing. Then the third thing is that probably people did not think, when they made these registrations, whether it was entirely sensible to do so, even if they were a charity, in places where there was frankly no real usable value. I remember doing an article in the magazine to members, right at the beginning of 2012, advising members when they were thinking about registrations: “Also, there may be a public relations angle to handle. When an application for registration of the rights is made to the Land Registry it will serve notice on the registered landowners of the surface land whose titles are affected. Currently the surface owner may blithely assume that he owns the minerals and sporting rights (as obviously up to then there is nothing recorded on his registered title to the contrary) and he may not take kindly to an encumbrance being noted on his title. So there may be merit in carrying out a sifting process and excluding areas which have been, for example, developed and where the prospects of sporting or mineral rights realistically being exercised are therefore remote.” I have to say that we have had terrible trouble on Anglesey. I do not have a clue whether that chap took legal advice. He is not a CLA member, but if he had been more selective in what he did, I don’t think we would be here today.

Mr Llwyd

You are obviously batting very hard for the CLA. Are you saying if he were a CLA member, he would not have done what he did? No, sorry, you needn’t answer that.

Roger Tetlow

I don’t have any land on which to do anything myself anyway.

Timothy Troman

Could I add a fourth reason, possibly, in that the notices that went out to the freeholders were not terribly forthcoming with information on this? It could have been adequately explained to the freeholder what was actually being registered and what was being claimed. That has often been explained to them since then, and quite often people just say there is not a problem. It is because concern has built up due to a lack of information.

John Howell

A lot of the discussion centred around the value of manorial rights but, if you look at this and you were abolishing manorial rights, what are the levels of compensation that would be required?

Timothy Troman

As probably the only valuer in the room, I would say that you would have to look at each title individually. Although it has been properly said by this panel that many of the titles have no intrinsic value, you do not know that until you have looked at them. The act of looking at them and writing a report would incur a cost. I did have a think, on the way down, how much that was likely to be, and obviously there will be legal time involved as well. You are going to be looking at several hundreds of pounds, perhaps up as far as £1,000, in costs to whoever in order to determine that there is not a value, and then they can be passed over to the freeholder. Who would pay that? Would it be the manorial right owner who would receive only nominal compensation, or would it be the freeholder who would be, effectively, getting something that they did not previously have? Those are the cases where there is no intrinsic value. Where there is a significant value, such as the case I have referred to in Trent Valley, obviously a more in-depth assessment will be required and larger sums would be considered.

David Towns

I can only add to that by saying that we have heard some evidence this morning, and that is absolutely acceptable, but I really do not think there is a particular problem caused by these notices on a wider scale. It has affected certain individuals. It has affected certain geographical areas, and I do accept that, but there are 24.3 million registered titles in England and Wales. There have been varying figures, but I note the MOJ’s submission, which was published yesterday, gives a figure of about 84,000 or 85,000 unilateral notices that have been registered in terms of manorial rights since December 2012. I have a figure from the Land Registry of 3,200 from 2003 until December 2012. So it does show there was a huge move to do this before the deadline. In total, there are fewer than 90,000 unilateral notices. That is less than 0.4% of all registered titles.

John Howell

Is there a difference between the rights that apply to rural land and the rights that apply to urban land?

David Towns

Yes, there is. There is more what you might call immediate potential for the rights. There is possibly—

Chair

In which case?

David Towns

Sorry?

Chair

There is more immediate potential in which?

David Towns

In terms of rural, so where you have an undeveloped area of land, there is more potential to be able to utilise manorial rights, potentially sporting rights. I fully accept that under the law you cannot exercise sporting rights on a residential housing estate. Most manorial lords who have 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.

John Howell

Can I take you both back to the big picture argument? The Bond Dickinson evidence states that the argument that property rights should be lost or abolished just because they are historic is “fallacious.” The CLA suggest that abolition would be a blatant attack on property rights. Can you expand on that for us?

David Towns

Certainly. I have already covered the point, really. If you have a right of way, for example, just because you do not use it, you still have that right. There is a case mentioned in the submission where a right of way had not been used at all for nearly 180 years. The courts said that that did not matter. It is still a property right that one person has over someone else’s property. It does not matter that it is old and archaic and has not been exercised for a long time. We have Magna Carta. Nobody would suggest getting rid of Magna Carta just because it is very old.

Roger Tetlow

I cannot add an awful lot more to that. There are very old bits of legislation, very old case law, going back 500 years. They still have relevance today. Antiquity does not mean that there is an irrelevance there. Going back on the point on whether they have any significance, I note in the Church Commissioners’ response they say they have several working quarries where they are basing their extraction on manorial rights, so plainly those things can have, and today do have, significant values. What do you do if you decide to abolish them? Do you abolish them only where they have not been working, or do you say that anybody who has these rights suddenly loses them? More to the point, by taking them from one landowner, you are giving them to the surface owner, so you are just transferring the value from one group to another group.

Andy McDonald

There could be an ancient right of way, could there not, and when a housing development comes along, you have the lord of the manor come knocking at your front door saying, “I am coming through. I am coming through your front room, out your back kitchen and through your back gate”?

Roger Tetlow

It is not going to happen. It would not happen because the developer would want to make sure he had a clean title at the start of it.

Andy McDonald

How do you know?

Roger Tetlow

The second thing is that, once something has been built over a right of way—something physical—if a landowner has not reserved his right by that time, he will have been assumed to have abandoned it.

Timothy Troman

The other point, of course, is that the lord of the manor cannot simply exercise those rights without the surface owner’s consent, so he cannot just say, “I am coming through,” because the surface owner will say, “No, you can’t.”

Chair

I could not quite hear what you said. You said he cannot exercise the right without what?

Timothy Troman

The surface owner’s consent. Whoever owns the land.

David Towns

One of the points to make is that this whole inquiry has come about because of unilateral notices. As I have said, fewer than 90,000 properties are affected by them. At least 116,500 have this pre‑existing note, which is what we talked about very early on in this evidence. By abolishing manorial rights, you are also going to be handing certain property rights to those 116,500 freeholders who, when they bought their properties, did so with their eyes wide open knowing that their properties were subject to these rights.

John Howell

How does that relate to the Human Rights Act?

David Towns

If you look at the Law Commission’s work in the late 1990s, they looked, very briefly, at abolishing manorial rights and decided on control rather than deprivation because of article 8. Deprivation without compensation clearly would be a breach of human rights. They saw imposing a deadline proactively to protect your rights or to face extinguishment, and giving what they described as a generous time scale to do that, would not offend human rights because that was the state controlling something, rather than state deprivation.

Mr Chope

Can I ask you about the use of manorial rights on the land that is going to be acquired for HS2? Are there any applications for compulsory purchase of manorial rights in relation to that development and, if so, is there any suggestion as to what the compensation payable might be?

Timothy Troman

I have absolutely no idea whether there is. There have been a few inquiries that have come through. The way compulsory purchase works is that you would look at the market value of that interest now. In the vast majority of cases it would be nil. You cannot attribute a value on compulsory purchase to the actual development itself. I do not think it has—

Mr Chope

Some of the sporting rights, for example, may be severed by this railway. That is directly relevant to the subject we are discussing, is it not?

Timothy Troman

That is possibly directly relevant, yes; absolutely.

David Towns

Personally, I am not aware of any manorial rights being affected.

Timothy Troman

But on the mineral side, I do not think it will be an issue.

Chair

There may be those who wish to explore this. Thank you very much indeed for your help. Examination of Witnesses

Witnesses

Professor Judith Bray, University of Buckingham, and Christopher Jessel, retired solicitor, gave evidence.

Chair

Professor Bray and Mr Jessel, thank you very much for coming this morning and giving us your help and expertise on this issue. We are learning by the minute, and that process will continue during this part of the session. I am going to ask Mr McDonald to begin.

Andy McDonald

Good morning. Could you tell me what, in your view, were the primary benefits of the provisions in the 2002 Act related to manorial rights and the removal of their overriding status? Would you like to deal with the primary benefits?

Christopher Jessel

Certainty. The Law Commission’s intention was that prior to 2003 these were overriding interests and they bound the land, whether people knew about them or not. The general principle of land registration is that you are bound only by things that appear on the register of title, but there is a list of overriding interests, and the Law Commission wanted to reduce that list. One of the purposes therefore was so that people should know more clearly what rights affected their land.

Professor Bray

I would add something there. We have to take overriding rights in the context of the list. We are identifying manorial rights alone. There is a whole raft of rights affecting landowners. Indeed, on 13 October, there were other rights that had to go on the register, such as the right of chancel—the right vested in the Church to have those who live in the neighbourhood of a church to contribute to the costs of church repair, so we are in danger of just separating them out from this whole list. The list comes from the way our land law has developed; we have accepted that registration is obviously preferable, but it has been contested for centuries as to whether we would have a system of land registration. It was originally introduced, I believe, by Oliver Cromwell as an ideal way of registering land ownership. It seems incredible that it took until 2002 to address the whole issue of whether we should retain overriding rights. If you go back to the discussions in Parliament, you will see that there was some suggestion that the whole raft of overriding rights should have been abolished, which perhaps would have been preferable, but for individual reasons separate rights were retained. Some were retained in a different form; some were retained totally, such as rights of occupation. This group—I believe it is mending sea walls, rights of chancel and manorial rights—were given this 10-year window in which to bring them on to the register.

Andy McDonald

Are we having some of these discussions now because of this deadline of October 2013, and do you see that settling down and perhaps some better order taking shape as we go forward?

Professor Bray

Probably land lawyers were having that discussion throughout the 10 years, but for those who own property, it has obviously come into the limelight. They were not aware of it. I have just heard reference to an article written. One of the problems was not highlighting it—not making people aware that a right that existed was now going to be entered on to the register. That was probably a public relations exercise that has really caused many of the problems.

Andy McDonald

They should have used the PPI salesmen. They seem to be pretty good at getting the message out to people to register their claims. Do you think anything can be done to improve the law without the abolition of manorial rights, such as shifting the burden of proof? I am sure that you heard our discussion about that, but is there anything that can be done to say to those who are claiming these rights, “You need to do a better job of establishing your case”? How could it be improved without abolition?

Christopher Jessel

It is very difficult. You have the situation now. One of the things you could do is to make it clear who has the rights. In the case of unilateral notices, which has been the recent procedure, somebody has had to put that in and say who they are, and it can be identified from the register. There are these older entries that the Land Registry makes automatically and has been making probably since the 1860s, where there just is a note that the land is subject to manorial rights without any indication of who owns those rights. This is going to be one of the problems in tracing who has the benefit of it.

Professor Bray

I would suggest that a compromise would be that we could introduce a method of contesting the right. There has already been reference to easements and settling covenants. There are well‑established ways of contesting a covenant that is obsolete and anachronistic. I would have thought that it would have been fairly straightforward to introduce a method of challenge in a Lands Tribunal to challenge the existence of a right, because our problem is the vast range of rights that we are discussing. We are discussing rights that are anachronistic, which do really vest in a different world—a mediaeval world. We are also discussing rights that are very pertinent to people’s ownership of land in the 21st century. Our problem is trying to separate those. I would have thought that it should have been a straightforward way of contest for those that are obsolete and anachronistic. The Lands Tribunal would be a very useful forum to contest that.

Andy McDonald

We are learning a lot this morning. Could you help us a little about the differentiation between rights that may require registration and the continuation of the overriding nature of the mines and minerals aspects to all of this, because that continues? Could you just clarify that for us?

Christopher Jessel

Yes. There is an important difference. In the case of the normal severance of mines and minerals, if somebody sells the surface and retains the minerals, there is a physical division. The surface owner owns the freehold of the surface; the mineral owner owns the freehold underneath. It may be a particular mineral strata, or it could be everything underneath. The surface owner has a right of support, but they do not have the freehold beneath the surface. In the case of copyhold minerals, it is quite different. As was explained in Eardley v. Granville in 1876, the copyholder, and therefore the present landowner, has the ownership right the way through. The lord of the manor has a right to the mineral substances but, for example, the important difference is if the minerals are worked and removed—Eardley v. Granville turned on this—the question is who owns the void caused by the removal. It was quite important in that case because Lord Granville’s people wanted to pass under Mr Eardley’s land in order to get from one working to another. The question was whether they had to pay Mr Eardley a wayleave for it. The answer is that in the case of copyhold land, it is the copyholder or the present landowner who owns the void. In the case of severed minerals, it is the mineral owner who owns the void, so there is quite an important distinction.

Chair

Who has the duty of support?

Christopher Jessel

The mineral owner still has a responsibility to support the surface.

Mr Llwyd

That has been a live issue in coal mining communities, has it not? Most examples of the current or recent use of manorial rights that we have received have mostly referred to extraction of minerals from non‑residential land. What is your understanding of the extent of the use and exercise of current rights to date more widely, and how do they impact on landowners?

Christopher Jessel

They certainly have experience. I was acting for one landowner who had to do a deal with the lady of the manor in order for a gravel pit to be opened. I am aware of cases where it goes on. I do not know how widespread it is.

Professor Bray

I do not have practical experience. It is obvious that we need to have some kind of survey to find the extent of the use of the rights and categorising the rights.

Mr Llwyd

What is your understanding of whether the consent of a landowner is always required for the exercise of manorial rights? I do not doubt the previous panel. I am just asking for your view and I am sure that it will be consistent, but we will see.

Christopher Jessel

The law in relation to mineral rights is very clear because it was very hard fought in a number of cases from the 17th century onwards. In the general position—the normal position of copyhold land—the stalemate position is assumed to apply. There are quite a lot of cases in which the copyholder had the right to work the minerals, and this was confirmed by the House of Lords on an occasion, and there are several others. There are also some cases—Newcastle‑under‑Lyme is the best known manor where this happened—where the lord had the right, by underground workings only, to take the minerals provided he did not deprive the surface of support. My impression is that those are fairly rare. In the case of sporting rights, the position is simply not known. There seem to be virtually no decisions on manorial sporting rights. We simply do not know what the law is. My guess is that the same rules apply as apply to minerals and as used to apply to timber, namely that the lord has no right to come in and exercise sporting rights unless there is a special local custom to the contrary, but we do not know.

Mr Llwyd

Is there a clear distinction between those cases where manorial rights have real value and can actually be exercised, and those where they simply cannot—for example, in urban residential locations?

Professor Bray

I would say there should not be a distinction. If you own a property right, that should be reserved, and I echo the comments made earlier. Where you have a property right, use should not be the key factor; it should be whether you own the right. I would emphasise that perhaps the introduction of a 10-year period, allowing such rights to come on to the register, has emphasised the value and the proprietary nature of such a right— the fact that it now is acknowledged to be a right that could be entered on the register. To go to your question, I do not think whether it is a useful value should be relevant. It may be relevant in discussion of whether or not it should be abolished, but I do not think to say it has not been used, or that it has minimal value or substantial value, should be the driver as to whether or not the right exists.

Mr Llwyd

You referred to the 10-year period for registration. That was quite reasonable and, as I recall in my early years of practice, the 1965 Act had so many years of introduction as well. It seems to me that everybody has left it until the 11th hour. We are in a bit of a calamity at the moment, hence a Member of Parliament and a Member of the National Assembly giving evidence today. Do you think there is a case for extending that period so that people can have a better understanding of what is going on, given that the Land Registration Authority have admitted that they were not transparent or helpful enough in dealing with people who are objecting to these initial notices?

Professor Bray

Are you suggesting the extension would be of benefit to those subject to the rights?

Mr Llwyd

Perhaps an extension all round so that people could really understand what is going on, because there is a great deal of—I do not mean this pejoratively—ignorance out there about what the process actually entails.

Professor Bray

Personally, I do not think an extension would be beneficial. In everybody’s evidence there is an acceptance that the registration has not changed anything. Those who are critical are saying, “I accept there is a right, but surely that right should be abolished.” Extending it would simply allow greater discussion, but would not address the real issue of whether or not such rights should be reserved and whether or not such rights are valuable.

Mr Llwyd

I understand that petroleum reserves, for example, are the property of the Crown. Where does all of this discussion lie in terms of the rush to do this fracking that we are all reading about every day?

Christopher Jessel

It is a coincidence. It just so happens that the 10-year period runs out at a time when everybody is aware of fracking, but I do not think there is any link. As you say, oil and gas were nationalised in the 1930s.

Mr Llwyd

There is no reason to believe, is there, that if a landowner objected to a fracking exercise by somebody exercising his or her manorial rights, that would stop it?

Christopher Jessel

The insertion of a pipe, which is what is normally involved with fracking, is a trespass against the landowner; it is not a trespass against the lord. The lord has the proprietary right in the mineral substance. Provided they are not taking the mineral substance, the lord has no say in that. If the lord has no interest in the mineral value of the gas or oil and has no possessory right to the land, and so cannot bring trespass proceedings, I would be surprised if a lord had a claim just because a pipe was put through.

Chair

Just to clarify a point, in a previous session we were told that there was no limit of time on challenging the registration. Is that right?

Christopher Jessel

That is my understanding, yes. The time limit for registering has now passed, except you can still do it, provided you are prepared to pay a fee, until the land changes hands. As I understand it, there is no objection and you can challenge the—

Mr Llwyd

Really an extension would be a red herring, would it not, in effect? Going back to what you said earlier on, Professor, there does need to be some greater clarity in terms of simplifying the system, I understood you to say.

Professor Bray

Yes. Which particular part?

Mr Llwyd

The system of the unilateral notice and then the objection and so on and so on, so that people understand more fully and more easily how they do object and take the matter forward.

Professor Bray

It is just an inherent problem with overriding rights, which was recognised in 2002. The inherent problem is that rights exist that you have no obvious way of discovering on purchase of property. The fact is that they were retained by the 2002 Act in schedules 1 and 3. They were retained in differing ways. Obviously, some had a time limit and some still exist. We have to recognise that there are overriding rights still in existence that may be difficult to discover on purchase of right.

Mr Llwyd

Do you consider—either or both of you—that this is a matter that should be revisited by the Law Commission?

Professor Bray

I would certainly suggest that the Law Commission has missed an opportunity in their 10th programme of reform when they thought of opportunities of whether to include the reform of feudal law, which would include manorial rights. If I was to be pedantic, manorial rights are outside the feudal structure, but they have missed an opportunity. It highlights that we really do lag behind other countries in allowing these remnants of a feudal world to exist. France abolished them.

Chair

They had a revolution.

Professor Bray

They had a revolution. We don’t need a revolution.

Mr Llwyd

They started them.

Chair

On the whole we try to avoid that.

Professor Judith Bray

Dare I say it: Ireland and Scotland have abolished them with comparative ease. It would be unfortunate if this debate were not to then lead to some inquiry, at least, which may lead to abolition, or at least to some change in the system.

Christopher Jessel

To be fair to the Law Commission, they were considering registered land, which is a means of reflecting the existing position and registering what is there. It was slightly beyond their remit to suggest a major change in property law, which would have affected unregistered land as well as registered land. I would agree; there is everything to be said for the Law Commission looking at it, but it would need to be a separate programme.

John Howell

Picking up the Scottish point that you made there, how analogous do you think the abolition of manorial rights in England and Wales would be to the situation in Scotland?

Professor Bray

It is not the same. We have to accept that the system in Scotland was a feudal structure, where you are looking more at a pyramid of rights. In some ways it was more difficult; in some ways it was more simple. But, certainly, the lessons that we could learn are the way that they looked at compensating the owner of a right, which we would look at as feudal burdens and feudal duties. They found a structure and they gave it a time limit, and it has apparently worked.

John Howell

Would you like to expand on the issue of compensation in this if we are going down the abolition route? How do you work out the compensation?

Professor Bray

It is very problematic. I have read many different routes in people’s evidence. You will know that people are willing to pay a considerable amount for the title, so I do not know whether you would say, “Should we look to that?” That would obviously not recognise the property right; it recognises a sum that people are willing to pay. The compensation would be for the right that you have lost. The valuation of the right that you have lost would really recognise the potential value as well as the current value, and that will be difficult. That will be, as previously mentioned, the real cost; not necessarily the actual cost, but the cost of valuation.

Christopher Jessel

There is an awful lot of experience in this. The earlier legislation—the Copyhold Acts—contained very detailed provisions for ascertaining compensation, admittedly for different things. Much of the Scottish reforms reflected what the 1922 Act had already done in England, so it was to some extent catching up. The legislation did contain provisions about how you compensate, how you calculate compensation, and the procedure for doing it. That could probably be adapted without too much difficulty.

John Howell

Can I pick up the points that I asked the previous panel about the Human Rights Act and the interrelationship with the Human Rights Act, and whether this is going to lead to legal challenges if we go down the route of abolition?

Christopher Jessel

I would repeat what was said. The Law Commission did look at this in their report and they were satisfied that the procedure they had suggested was compliant. If you go further and simply remove these rights without compensation, there could be a possible claim, and not just on human rights. It is a very old principle of English law that you do not take property away without compensation, and that goes back centuries— before the civil war—so I do not think it would be possible just to abolish valuable rights without any compensation.

Professor Bray

The article that we are really focusing on is article 1 of protocol 1, which is deprivation of possessions and property. Article 8 would be relevant and there it would be subject to challenge. The danger is, really, the problem of the Human Rights Act and the possibility of constant challenge. Any changes or any attempt at abolition would have to have that in mind so that you acknowledge that there was likely to be a challenge and ensure that challenges are kept to a minimum.

John Howell

Can I put you on the spot? We are probably near the end of the questions. Do you think that manorial rights should be abolished?

Professor Bray

I personally think that they should be addressed. That is a lawyer’s answer.

Chair

A very different word.

Christopher Jessel

It would be difficult to abolish them. They already have functions. People are reliant on them for certain mineral extractions and so on. I do not think it would be practical just simply to abolish them.

Chair

We have a point from Mr Chope.

Mr Chope

They are part of the rich heritage of England, are they not? Isn’t that really what we are talking about? There is a big difference between Scottish land law and English land law. That is why people like me, who did a law degree in Scotland, were unable to get exemptions from the Bar exams in land law in England. Why do we need to change distinctions?

Mr Llwyd

It is not very popular in Wales.

Mr Chope

Anyway, perhaps that is more of a comment, but I have a specific question. It seems, from the evidence that we heard earlier, that there have been quite a lot of incidents of solicitor negligence. Those of us who have argued for the importance of solicitors having expertise in conveyancing have said it is sensible to employ the best solicitor so that you can be absolutely sure that the title you are getting is what you are expecting. It sounds as though there have been quite a lot of cases where there has been rather a cavalier approach by solicitors in connection with these manorial rights. Are you aware of any cases where people have sought and obtained compensation for negligence against their solicitors?

Professor Bray

I do not know about manorial rights, but certainly rights of chancel. I believe the solicitors were sued in the Cantlow case where, if you know the facts of the case, the people living in a property near a church were presented with a very considerable bill and they were not aware of the fact that they might be subject to these rights. They were overriding rights, and that led to an action. When they failed to challenge the right, they then sued the solicitors. I do not know the outcome. I only know the land law aspect of it. You may know.

Christopher Jessel

I am not aware of any cases that have been brought, but it is early days because we are still quite close to the deadline. It is possibly unlikely. On any purchase, there is a standard procedure of raising preliminary inquiries. One of the standard inquiries is, “Are there any overriding interests affecting this land?” There is a standard answer to that, “The seller is not aware of any, but the sale is subject to any which may exist.” Solicitors who knew about any such rights and failed to tell their clients might well be liable, but if they have made reasonable attempts to discover them and there simply was not any information, it is difficult to see how they could be held liable.

Chair

Thank you very much indeed. We are very grateful to both of you, as we are to all our witnesses this morning. Oral evidence: Manorial Rights, HC 657 26