Property Boundaries (Resolution of Disputes) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 12:31 pm on 9th December 2016.

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Photo of Lord Henley Lord Henley Lord in Waiting (HM Household) (Whip) 12:31 pm, 9th December 2016

My Lords, I am sorry that the Chief Whip is not in his place but my noble friend the Deputy Chief Whip will have heard the last point made by the noble Lord and will discuss it with him. It could be a way of debating Private Members’ Bills which pursue matters of great importance and can often involve great bitterness, as both the noble Lord, Lord Kennedy, and my noble and learned friend Lord Mackay made clear. We would all like to avoid such matters and the issue is worthy of further discussion. My noble friend will take that suggestion back to the Chief Whip.

I congratulate the noble Earl, Lord Lytton, on securing a Second Reading for his debate and on the somewhat more decorous approach we have taken to it than to the previous business. It is an important issue. I also congratulate the noble Earl on securing such distinguished support from my noble friend Lord Caithness and my noble and learned friend Lord Mackay.

As the noble Earl said, the Bill is broadly similar to the Bill he introduced on an earlier occasion and I am grateful to him for explaining to the House how it differs from its predecessor. It has as its core aim that of making it easier to resolve property boundary disputes which, as all noble Lords have made clear, can involve deep bitterness. It proposes to do this through a system akin to that adopted in the Party Wall etc. Act 1996, with which the noble Earl, Lord Lytton, is very familiar. It would require that disputes about the exact location of a boundary between adjoining properties in England and Wales should be referred to a surveyor or surveyors acting as independent adjudicators, the final determination subject only to a right of appeal to the High Court. It also proposes to apply the system to disputes relating to the location and extent of private rights of way.

The noble Earl accused the Ministry of Justice of masterly inactivity. I hope to explain in my brief comments that that is not the case. The noble Earl considers that the procedure proposed in the Bill will make dispute resolution simpler, faster and more cost effective. Those are laudable aims which the Government share. Indeed, we have made, and continue to make, considerable efforts to control the cost of civil litigation to ensure that the costs incurred are proportionate to the subject matter of the dispute. However, we have significant reservations about the extent to which the proposals contained in this Bill would improve matters. We are concerned that they would have the unfortunate effect of making the resolution of these disputes more complex and costly than at present.

A similar Private Member’s Bill relating to the resolution of boundary disputes was introduced in another place in 2012 by my honourable friend the Member for Dover, Charlie Elphicke. In the light of the concerns which that raised, the Government decided to carry out an initial scoping study on the issue, the results of which were published early in 2015. The core conclusions of the scoping study were that there would be merit in the Government carrying out further work to assess the feasibility of improvements to a number of aspects of the current system. These included, in particular, the use of mediation—I declare an interest as an accredited mediator with the Centre for Effective Dispute Resolution, CEDR—experts’ termination, the spreading of best practice and the provision of better information. More radical reforms such as those proposed in this Bill and its predecessor would not currently be justified.

The noble Earl’s Bill also covers disputes about the location and extent of rights of way. These disputes were not considered in the scoping study.

Before I update the House on possible improvements to the current system that the Government have encouraged, I would like to focus on the core difficulties we see in the approach proposed by the noble Earl. Responses to the scoping study confirm that boundary disputes can arise for a number of reasons. While some may follow from an unprincipled unilateral annexation of a strip of land, many more will derive from two honestly held beliefs as to where the boundary lies. At the root of those divergent views will frequently lie a conveyance which is poorly drafted or at least does not define the property to be transferred with sufficient clarity and precision.

My noble and learned friend Lord Mackay thinks that these are not necessarily legal matters and would be better resolved by surveyors. However, such disputes will ultimately hinge on the legal question of who owns a particular piece of land or is entitled to exercise a particular right of access and would fall to be decided on the interpretation of the evidence in the light of the law. In particular, the outcome will depend on the interpretation or construction of legal documents such as conveyances and the plans incorporated in them.

This is precisely the kind of dispute which the courts and the Land Registration division of the Property Chamber of the First-tier Tribunal are designed to determine. A surveyor, no matter how expert in technical issues, will not be able to give a ruling which is conclusive in legal terms and will not necessarily have the legal expertise to deal with the complex legal issues which might arise. This in itself would make it likely that many decisions would be appealed.

That prospect becomes even more likely when one takes account of the considerable bitterness and antagonism which such disputes can generate, to which we have all referred. Given that, unlike party wall cases, boundary disputes are generally likely to produce a winner and a loser. The chances that a loser will be determined to vindicate his or her view of what is right by bringing an appeal are high. A rigid system requiring referral in all cases at an early stage of the process set out in this Bill could also serve to raise the stakes in the dispute, increase hostility and entrench attitudes.

Taken together, these points would mean that the Bill would simply add a further layer to the proceedings, which would increase the costs involved rather than reducing them. In addition, in some cases, the early appointment of experts could in itself front-load costs where the disputes might have been resolved in other ways. We believe that a more effective and proportionate approach is to look at practical procedural improvements to the current system rather than to undertake a radical overhaul.

I hope the noble Earl and others who have spoken in support of the Bill will accept that the Government are committed to ensuring that boundary disputes can be resolved fairly and effectively and to minimising the adverse effect of adversarial behaviour and entrenched positions. We believe the work we are undertaking represents a more effective approach than radical reform of the law. While the Government will not oppose the Motion to give the Bill a Second Reading, for the reasons I have given we have reservations about the changes to the law that it proposes.

If the noble Earl hopes to take this further, no doubt we will have further opportunities. This will depend on the skill of the noble Earl in persuading those who are in charge of such matters of the way in which the Bill should proceed. However, we will have further opportunities to discuss that.

As to the question of fact put to me by the noble Lord, Lord Kennedy, I have not yet received an answer. I will write to him in due course and give him those figures.