What are the liabilities of owning mines and minerals sites that land owners should be aware of? Chris Tofts, planning partner, explains.
The ownership of mines and minerals is usually considered to be an asset, but in certain cases it can also be a potential liability.
The term ‘mine’ has a specific legal meaning, which for these purposes can be best described as “the whole containing chamber which has the minerals in it”. In many cases, the ownership of the chamber will continue even following the removal of all of the minerals. The ownership of this chamber can result in liabilities to third parties.
Below is a brief summary of some of the potential issues – although each case would need to be considered on its own merits.
Statutory Nuisance
Any premises in such a state as to be prejudicial to health or a nuisance is deemed to constitute a statutory nuisance. Some Local Authorities have considered that subsidence caused by collapses into mines meet that definition (where the public had access to the collapsed land).
Where a mine has not been worked for the purpose of getting minerals or products since 9 August 1872, a statutory nuisance will exist where a shaft or outlet’s surface entrance is not provided with a properly maintained device and, by reason of its accessibility from a highway or a place of public resort, it constitutes a danger to members of the public.
It is also a statutory nuisance not to fence a mine which was abandoned prior to 9 August 1872 if the public do have access to it. There is also a duty to fence a mine which was abandoned after 1872, even if the public do not have access to it.
Private Nuisance
A private nuisance involves the interference with a third party’s use and enjoyment of their land.
One such interference could be the letting down of the surface owned by a third party. Sometimes a mineral owner will have a right to let down the surface, if they do not, then that may amount to a private nuisance.
What has happened to the land since the separation of the mineral ownership may also be relevant – an owner of land enjoys a right of support of their land in its natural state from the adjacent and subjacent land, but land is not in its natural state if has structures built upon it. Right of support for buildings would have to be carefully considered.
Any private nuisance claimant would need to establish that, on the balance of probabilities, a nuisance has caused damage to their land or interfered with their proprietary interests. Expert evidence may be needed to establish that there was a causal link between the mine or mining works and the subsidence. There is a limitation period for nuisance claims.
Negligence and Trespass
The essence of negligence is the law’s condemnation of acts that are foreseeably harmful.
Unlike nuisance, negligence does not turn upon considerations of reasonable use, but on the existence of a duty of care and breach of that duty causing damage that is reasonably foreseeable. A claimant in negligence may not need to prove an interest in the land.
A trespass is a wrongful interference with one’s possessory rights in property, for example, through contamination from the mine.
Public nuisance
A public nuisance claim could arise. Public nuisance is a criminal offence classed as follows:
“A person is guilty of a public nuisance … who a) does an act not warranted by law, or b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”
Occupiers’ Liability Act 1957 (‘the 1957 Act’)
The 1957 Act seeks to regulate the liability of occupiers of premises. The duty of care is imposed upon those persons who have some degree of physical control over the premises.
The 1957 Act relates to visitors rather than trespassers. The 1957 Act requires occupiers to “take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. However, where a danger would be entirely obvious to a reasonable visitor, no duty of care would arise.
It is possible for an occupier to exclude their duty of care to a visitor by contract or notice.
Occupiers’ Liability Act 1984 (‘the 1984 Act’)
Unlike the 1957 Act, the 1984 Act seeks to regulate the liability owed by occupiers to trespassers. The term ‘trespasser’ encapsulates “…the burglar, the arrogant invader of another’s land, the walker blithely unaware that he is stepping where he has no right to walk, or the wandering child”.
An occupier has a duty to take such care as is reasonable in all the circumstances of the case to ensure that the trespasser does not suffer injury whilst on the premises in question.
Part IIA Environmental Protection Act 1990
This part of the EPA relates to contaminated land. The contaminated land regime is the statutory regime for remediation of contaminated land that causes an unacceptable level of risk.
“Contaminated land” is defined as any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land that:
- (a) significant harm is being caused or there is a significant possibility of such harm being caused; or
- (b) significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused.
The regime does not make it a criminal offence to contaminate land. The overall objective of the regime is to ensure contamination is cleaned up.
For further advice on potential mineral liabilities please get in touch with our Mining and Minerals team below.