Mines and Minerals Rights Relating to HG2-124 and BL1-40
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Leeds Revised Submission Site Allocation Plan (SAP) Matter 7, Agenda Item 4 – Mines and Minerals Rights relating to HG2-124 and BL1-40 Position Statement between: (1) BDW Homes and Taylor Wimpey ("BDW/TW") (2) Mr Christopher Makin (3) Leeds City Council ("LCC") Introduction 1 At the close of the Examination in Public Hearing (EiP) held on 2 August 2018, the Inspectors' requested the relevant parties (as noted above) to provide a Position Statement, setting out any areas of agreement and disagreement regarding the issue of mines and minerals rights relating to HG2-124 and/or BL1-40 (together the "Site"). 2 This Position Statement has been prepared and submitted in response to the Inspectors' request. It sets out the factual and legal background to the land ownership of the relevant sites (so far as it is relevant to the issue of mines and minerals) and addresses Mr Makin's stated ownership of the mines and minerals. 3 Copies of the relevant title registers and plans as well as the Conveyance dated 30 August 1938 made between (1) Alvary Douglas Frederick Gascoigne and (2) Walter Dawson (the "1938 Conveyance") were provided to the Inspectors at the close of the EiP. Land Ownership of HG2-124 and BL1-40 – Agreed Facts 4 Under Title number WYK586916, Mrs Jean Makin, is registered with an absolute freehold title to the land known as land on the north side of Selby Road, Micklefield (the "Property") and which comprises part of HG2-124 and all of BL1-40. Entry Number 2 of the Property Register confirms that there is an express exception of mines and minerals together with the ancillary powers of working. 5 Such mines and minerals excepted under the Property and land to the north known as Sturton Grange Farm and other land to the north of Ridge Road are owned by Mr Christopher William Makin ("Mr Makin"). He is registered with only a qualified freehold title under title number YY1303 and has been the registered proprietor since 23 February 2012, when he purchased the interest for the very modest sum of £100. The reference to "qualified" in this context means that his title does not prejudice or affect the enforcement of any right title or interest existing in the mines and minerals before 11 December 2007 1. 6 The root of Mr Makin's title is the 1938 Conveyance. BDW/TW produced a copy of the 1938 Conveyance at the EiP. The 1938 Conveyance is not referred to on either title YY1303 nor WYK586196. Part of the copy 1938 Conveyance is illegible but the relevant mines and minerals reservation can be read and a transcript of the reservation was provided to the Inspectors and which is repeated below for ease of reference :- "There be reserved unto the Vendor and his assigns the mines, minerals and mineral substances below the surface within and under the property hereby conveyed together with all such powers, rights and easements for searching for winning working getting carrying away the same and adjoining mines and minerals worked in connection therewith by underground workings only as he or they may consider necessary or proper including power to let down the surface whether built upon or not, proper compensation to be paid to the purchaser or other the owner or owners for the time being of the property hereby conveyed for all damage caused by subsidence to any buildings now erected thereon by reason of the exercise of the powers and rights reserved as aforesaid with power also to carry and convey through and under the property hereby conveyed all mines and minerals bought from the adjoining or neighbouring land belonging to the vendor or other persons." (emphasis added) Case Summaries 7 In summary, the parties' cases are as follows: BDW/TW's POSITION Due Diligence 7.1 BDW/TW, are both large national housebuilders, and have been fully cognisant of the claims made by Mr Makin from the outset and have continued to promote this site for development on the basis that Mr Makin's claims do not affect deliverability of the Site. 7.2 Significant due diligence has been carried out by BDW/TW, including: 7.2.1 site investigations by Groundtech Consulting Limited including borehole testing across the site to establish the type, extent and depth of any minerals. A copy of the borehole test results is attached; 7.2.2 seeking advice from a leading expert (Mr Geoff Marsden of David 1 See entry number 1 of the Proprietorship Register of Title Number YY1303 2 4137-0411-7014, v. 1 Walker Limited) in mines and minerals to advise on matters, including the history of the Site, its geological make up and the viability of mineral extraction. A copy of Mr Marsden's CV is attached; 7.2.3 seeking advice from leading Counsel (Mr Michael Driscoll QC of Maitland Chambers) and obtaining a written Opinion, a copy of which is attached together with Mr Driscoll's CV. As a result of the thorough due diligence carried out, BDW/TW have received advice that whatever rights Mr Makin may enjoy, they do not and cannot in any way affect the deliverability of the Site. 7.3 Unfortunately the same cannot be said of Mr Makin's due diligence which is anything but thorough. Despite his stated ambition to mine the Site, it was readily apparent at the EiP and in the drawing up of this statement that Mr Makin has not carried out even the most basic due diligence. 7.4 In particular Mr Makin is not even able to confirm the legal basis upon which he claims ownership of any mines and minerals. Remarkably he is questioning the validity of the very document (i.e. the 1938 Conveyance) that severed the mines and minerals from the surface title. Despite his questioning the validity of that document he does not advance any alternative positive case regarding ownership and instead can only refer to fact that there might be other unspecified documents. This is a very unsatisfactory state of affairs. 7.5 This has meant it is BDW/TW that has had to explain the legal position to Mr Makin and indeed it is now clear that until 2 August 2018, Mr Makin and his professional team were completely unaware of the 1938 Conveyance, had given no thought at all to the legal basis of ownership and carried out no title investigation whatsoever. 7.6 This creates the distinct impression that Mr Makin has no genuine intention to seek to extract the minerals. Instead he is seeking to frustrate this process for his own collateral advantage, in order to seek to increase the possibility that land adjacent to the Site in his ownership can be allocated for future development at the expense of the Site. 3 4137-0411-7014, v. 1 The 1938 Act Conveyance 7.7 It is worth spending a little time examining the 1938 Conveyance and explaining why the rights reserved out of the 1938 Conveyance do not impact upon deliverability. 7.8 Until 1938, the land and underlying minerals comprising the Property were in the ownership of the Gascoigne Family of Parlington Hall. However, on 30 August 1938 the Property was acquired by Mr Walter Dawson, subject to a minerals reservation in favour of the Gascoigne Family but which was restricted to underground workings only. Mr Dawson is the predecessor in title to Mrs Jean Makin. Alternative opportunities are also being considered. The fact that Mr Makin has not applied for planning permission to-date nor engaged in any pre application discussions is only indicative of the fact that the time is not yet right for him to work the minerals. 7.9 Insofar as the minerals were concerned, from the documents available, HJ Banks & Company Limited ("HJ Banks") were the successors in title to the Gascoigne family and, on 31 October 1996, acquired "such right title and interest (if any) in the minerals (other than those vested in others by statute or otherwise)" and paid the sum of £10,000. 7.10 On 20 February 2012 Mr Makin purchased the mines and minerals title from HJ Banks for the sum of £100. HJ Banks is a sophisticated real estate development company that specialises in minerals and it is worth noting that they sold any title or rights that they had for only a nominal sum. This is indicative of the fact that the there is no commercial value in the minerals reservation for the reasons explained in this statement. It is highly unlikely that HJ Banks would dispose of their interest (if any) to the minerals for such a nominal sum if there was any significant value attached and indeed the only value is nuisance value.. 7.11 Mr Makin's title is derived from the 1938 Conveyance because, as stated above, it was at that time the mines and minerals in the Property were severed from the surface owner's title. Any rights that Mr Makin may have are limited to the terms of the 1938 Conveyance and when construing what rights Mr Makin may enjoy, this exercise must be carried out by reference to the circumstances that existed at the time of the 1938 Conveyance. There is no other document that severs ownership of the mines and mineral from the land and Mr Makin would know this if he had carried out the appropriate title investigation. 4 4137-0411-7014, v. 1 7.12 The 1938 Conveyance contains an express limitation on Mr Makin's ownership of the mines and minerals underlying the Site.