With Parliament and the Law Courts not sitting, and civil servants away on their holidays, now is the time for public affairs professionals to catch up on preparing their responses to any outstanding consultations, before their attention turns to the party conference season at the end of September. Summer is also a slack period for news, and in the attempt to gain readers’ attention, the “silly season” often gives rise ill-founded news stories in the media.
Last October we reported that it was necessary for the Church of England to issue a clarification on the media’s suggested links between its minerals registration programme and hydraulic fracturing/”fracking”, an issue linked to the Land Registration Act 2002, as is Chancel Repair Liability (although through different aspects of the Act). There is currently: an on-going DECC consultation on hydraulic fracturing; a short inquiry by the House of Commons Justice Committee on the abolition of manorial rights; and a Private Members’ Bill on the abolition of Chancel Repair Liability.
Given the short corporate memory of some media organizations – many of which are still unable to distinguish between the European Union and the Council of Europe – there is the possibility of further confusion between this consultation and two other unconnected initiatives, although only the fracking consultation is likely to have an impact.
Chancel Repair Liability
Lord Avebury’s Private Members’ Chancel Repairs Bill [HL] 2014-15, is a short three-clause Bill, for the abolition of liability to repair chancels, viz.
“No person shall after the commencement of this Act be liable as lay rector for the repair of the chancel of any church or chapel”, [clause 1]
Clause 2 makes limited exceptions to the abolition of liability effected by clause 1 in certain cases in which the need for repair arose before the Act is passed. The Explanatory Notes state that these exceptions arise in connection with what the Law Commission identified as a second problem over chancel repair liability: several liability: “in most cases in which there is more than one lay rector and the liability is not rent charge liability, each is liable for the whole repair costs.” In terms of its financial impact, at first sight it might appear that there would be no cost to public funds as a result of the change, but only a redistribution of liabilities between private parties: individual PCCs and lay rectors; [but see the comments of Greg Yerbury, below]
However, the Bill does not have government support, and currently no date has been set for its second reading. In a Westminster Hall debate on Wednesday 17th October 2012, reported here, it was clear from the response to the debate by Helen Grant, Parliamentary Under-Secretary of State for Justice, that the Government was not contemplating any change in the law, though the Ministry of Justice would keep the matter under review.
Manorial rights are certain rights over land that were specifically preserved when most remnants of the manorial system were abolished in 1926, and include: sporting rights and rights to timber, mines and minerals. These were the subject of the Westminster Hall debate Manorial Rights (England and Wales), [15 Jan 2014 Vol 584 Col 329WH]. As a result of changes introduced by the Land Registration Act 2002, manorial rights lost their overriding status in relation to properties if they were not protected by being registered before 13 October 2013. This has led to large numbers of applications to enter a notice claiming manorial rights on properties in England and Wales being made to the Land Registry in recent years, and subsequent notifications of these claims being sent to landowners by the Land Registry.
The House of Commons Justice Committee received a number of representations calling for the abolition of manorial rights, and wrote to the Law Commission and the Government asking whether there were plans to review the law concerning manorial rights in order to consider whether such rights should be abolished. It was informed that there are currently no such plans to do so, and therefore the Committee decided to undertake a short inquiry into manorial rights in order to instigate a debate on the current situation and inform any possible future review. The inquiry was launched on 20 June and the Justice Committee has asked for written submissions by Friday 5 September 2014.
In an earlier post Fracking and the Church of England we noted that whilst landowners may not own the title to sub-surface minerals, they may currently prevent energy firms from accessing these minerals under their land through the law of trespass, following the judgement in Star Energy Weald Basin Limited and another v Bocardo SA. On 23 May, the Government launched a consultation that would circumvent these restrictions, and would “simplify the existing procedure for shale gas and oil and deep geothermal underground drilling access.” It explains:
“The new proposals would simplify procedures which are costly time-consuming and disproportionate for new methods of underground drilling. Oil, gas and deep geothermal companies will be able to explore their potential, and will in return provide a voluntary community payment for access”.
The proposals would provide
- Underground right of access for shale gas and deep geothermal operations only below 300m (nearly 1000ft);
- A voluntary community payment of £20,000 per lateral well; and
- A clear notification system to alert local people.
These proposals were accompanied by a further report by the British Geological Survey on shale gas resources in Great Britain which assesses the resources of the Jurassic shales of the Weald. The consultation closes on 15 August 2014 at 11:45 pm.
As noted above, these three issues are independent, and apart from the DECC initiative on fracking, are unlikely to progress without government support, although we would not discourage anyone with an interest in either of the consultations from submitting their views.
The government’s enthusiasm to press ahead with fracking is clear from the announcement on 28 July that it was opening the bidding process for companies seeking licences to explore for onshore oil and gas. The BBC reports the newly-appointed Minister for Business and Energy, Matthew Hancock as saying “companies that are granted the new fracking licences would have financial commitments to the communities where the drilling takes place”, presumably anticipating the outcome of the DECC consultation. The areas available for these new licences cover much of the UK, and identifies where existing licences exist and where areas in which shale reserves have been identified.
 Law Commission (1985). Property Law: Liability for Chancel Repairs. London. HMSO. Extracts from the Report are included as the Annex to the Explanatory Note.
 However, see the comment of Greg Yerbury to our post Chancel Repair Liability – Revision Notes