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Right to win and work minerals entitles owner of minerals to plant trees on surface in order to get planning permission to extract minerals

On 14 June 2019, judgment was given by HHJ Russen QC in Morris & Perry (Gurney Slade Quarries) Ltd v Hawkins.

The case concerns a farm in Somerset. The defendant, Ms Hawkins, owns the surface and the claimant, Morris & Perry, owns the minerals beneath the surface. The 1975 transfer which originally severed title to the minerals from title to the surface reserved the minerals to the transferor with “a right of entry and all necessary ancillary rights in connection with winning and working the same” including a number specific rights set out in part I of the Schedule.

One of the specific rights in part I of the Schedule was expressed in broad terms: “Generally to do all things convenient or necessary for working obtaining making merchantable and disposing of the minerals subject to the provisions contained in the Second Part of the Schedule hereto.”

In order to exercise the rights, Morris & Perry were required to serve notice under part II of the Schedule. The notice provisions stated:

“a) The Transferor shall endeavour to give to the Transferee not less than twelve months’ notice in writing expiring at any time of its intention to enter into and upon any part of the property for the purpose of working and obtaining the minerals or for the purpose of exercising any or all of the rights and liberties hereinbefore contained and if such notice is given shall not be required to pay compensation for loss of crops upon entry PROVIDED THAT the Transferor may give less than 12 months’ notice of its intention to enter as aforesaid (but not in any case less than 2 months) but in such case shall compensate the Transferee for loss of crops

b) The Transferor shall be at liberty at any time having given one weeks prior notice in writing to enter upon the property for the purpose of making any exploration or survey or of carrying out any preliminary work or tests that may be necessary subject to the payment of reasonable compensation by the Transferor to the Transferee for any loss or damage not made good by it unless the affected land is subsequently occupied by the Transferor under the provisions of Part I hereof”.

Morris & Perry wished to plant trees on the surface, protecting them by fencing, and to then let them grow for about 5 years after which they intended to apply for planning permission to extract minerals from beneath the farm. The purpose of the trees was to provide screening. Their case was that this was reasonably necessary in order to get planning permission. They served 2 months’ notice of their intention to do that work.

Ms Hawkins refused to allow access leading to proceedings being brought by Morris & Perry. In those proceedings, Ms Hawkins said that

Morris & Perry were not entitled to do the works unless they had planning permission; they could not do the works in order to get planning permission; and
they had not endeavoured to give 12 months’ notice and therefore the notice served was void.

She applied for summary judgment dismissing the claim.

District Judge Watkins held in favour of Ms Hawkins on the first point. He decided that Morris & Perry could not do the works without planning permission and therefore gave judgment dismissing the claim. He did not, however, agree with the second point.

An appeal by Morris & Perry succeeded. HHJ Russen QC considered that the principal question was “… whether or not, under the terms of the Transfer, the Claimant secured the right to carry out the Works even though it does not yet have any planning permission to extract minerals from the Farm but proposes to undertake them to significantly enhance its prospects of getting it”.

He held that:

The construction of a written document is a question of law. The question was therefore whether the District Judge was right or wrong, not whether his conclusion was one properly open to him.
The Court should not take a restrictive approach to the interpretation of the rights. The courts do require clear words before interpreting mining rights as allowing the destruction of the surface: see Hext v Gill (1872) 7 Ch. App. 699, 717-8 and Bishop Aukland Industrial Co-operative Society v Butterknowle Colliery Co. [1904] 2 Ch 419. But that only applies to the destruction of the surface, not to a right to make use of the surface.

When a right to extract minerals is granted, with express or implied ancillary rights, the question of what the grantee may do pursuant to those rights is not fixed by reference to the circumstances which exist at the time of the grant. However, this principle did not help to decide what rights had been created.

When the Transfer used the word “necessary” this meant “reasonably necessary”. Even if no specific ancillary rights were granted, there would be an implied grant of such ancillary rights as were reasonably necessary for the enjoyment of the right expressly granted.

The concept of “winning” minerals included doing things which were reasonably necessary in order to obtain planning permission to extract them. Works would constitute “winning” if the purpose of the works was to enable minerals to be extracted and it was reasonably necessary to do the works in order to support that purpose.  Therefore works undertaken in anticipation of an application for planning permission to work the minerals under the farm were authorised.

The notice served was valid. The fact that the parties stipulated a minimum 2 months’ notice showed that a 2 months’ notice was not void. The provision that “the Transferor shall endeavour to give to the Transferee not less than twelve months’ notice in writing” was directory and not mandatory in effect.

Stephen Jourdan QC acted for the successful appellant.

The judgment can be downloaded below: 

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