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Retained or not retained?

S132 of the Land Registration Act, 2002 states that ‘land’ includes, inter alia, mines and minerals whether or not they are held with the surface of the land. ‘Mines and minerals’ are defined as including ‘any strata or seam of minerals or substances in or under any land, and powers of working and getting any such minerals or substances’.

The trustees of the Williams-Wynn 1987 Settlement (the claimants) owned and over time, sold land contained within some 40 land registered titles to the Environment Agency and the Forestry Commission (now vested in the National Assembly for Wales). The purchased land was used for forestry purposes and was managed by the defendant.

The claimants say it was the surface only of the land which was disposed of but what was beneath the surface was retained by them. However, for some years, the defendants had been extracting mudstone (the prevailing bed-rock in Mid-Wales) from below the surface of the land to be used as foundations for inter alia the forestry estate roadways. The claimants sought a declaration of rights, damages for trespass and for breach of their property rights pursuant to the Human Rights Act, 1998 (Wynne-Finch & ors v Natural Resources Body for Wales [2020] EWHC 1924 (Ch)).

The 40 titles had been categorized into 4 groups: those with express reservations, those pursuant to the 1864 Crown grant, other contractual enclosure agreements or under the Arwysti Enclosure Act, 1816. The judge at first instance found that in none of the categories does the claimants’ retained title extend to the mudstone but should this conclusion be wrong, the defendants had established adverse possession to the mudstone. The claimants appealed.

The Court of Appeal gave judgement on 12th October, 2021 ([2021] EWCA Civ 1473). The judges all dismissed the appeal holding for their expressed reasoning (given by Lord Justice Henderson) that none of the conveyancing reservations (which should always be read with care and deciphered in context) included mudstone. In consequence, the judges did not need to consider the law of adverse possession about which LJ Henderson said “The issues of law which would arise, if we needed to decide them, are both complex and difficult.”

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