Mines and minerals: does it matter if they’re ‘excepted’ or ‘reserved’?

The court has again considered trespass to minerals on a residential development. In ARC Aggregates Ltd v Branston Properties Ltd [2020]  EWHC 1976 (Ch), the Housebuilder was injuncted for trespass to minerals, even though the beneficiary had no ability to extract those minerals.

In this case, some considerable time was spent discussing the meaning of the phrase ‘excepting and reserving’ in relation to mines and minerals present on the site. As you might expect, one of the parties to the dispute was an aggregates business which had imposed the restrictions in a conveyance to a predecessor in title. More surprisingly, despite including the wording the company also specifically precluded any rights to extract such minerals for its own commercial benefit – so the purpose of the clause would seem to have been primarily about preventing the new owners going into competition with the aggregates company. 

The defendant was a housebuilder who had begun developing out the site. The aggregates company objected and sought an injunction to prevent the builder carrying out further works, claiming that the builder’s activities constituted a trespass on its ‘property’, the layer of ground comprising the minerals in the site below the level of previous excavations. 

The housebuilder countered, arguing that the minerals were an incorporeal right (they were simply reserved to the company), and on that basis whilst there might be a damages claim for interference, this wouldn’t entitle the aggregates company to an injunction. However, on this summary point, the court found for the aggregates company. ‘Excepting and reserving’ – despite looking like standard boilerplate drafting, meant two different things (so said the court). To the extent things were ‘reserved’ then they were a benefit attaching to another piece of land. The court, went on to say though that to ‘except’ something is to exclude it from the title being conveyed and that was an important distinction on these facts as the company had specifically precluded the right to take the minerals itself. So the usual presumption of land ownership (that you are deemed to buy an unlimited vertical title) was ousted here.  To the extent the builder was excavating beyond the depth of the previous commercial workings then it was trespassing on its neighbour’s ‘property’ and accordingly the aggregates company was entitled to an injunction, pending a full hearing on the detailed facts of the alleged trespasses.

For further guidance on the issues raised above, please contact Steven Kay or another member of Birketts Housebuilders Team.