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

Part of the debate – in the House of Lords at 12:39 pm on 9th December 2016.

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Photo of The Earl of Lytton The Earl of Lytton Crossbench 12:39 pm, 9th December 2016

My Lords, I am extremely grateful to all noble Lords who have spoken. I very much relate to what the noble Earl, Lord Caithness, had to say about the problems of sloppy drafting or mapping. The case he had knowledge of was obviously very acrimonious and, he says, would have been avoidable. Multiply that, if your Lordships would, by dozens of cases every year, probably costing at an absolute minimum some £50,000, and that starts to give one an idea of the issue.

I was very pleased to hear the comments of the noble and learned Lord, Lord Mackay of Clashfern, because he unpicked with total clarity the issue of what is the legal construct on the one hand, and the physical, evidential construct on the other. I thank him very much for that contribution because that is the point I have been trying to make in my rather inexpert way for some time.

I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support. Obviously, he was involved in this the previous time around. I am very glad that he is still there and sees the logic of what I am trying to achieve.

Turning to the Minister’s comments, I am gratified that at least the point of principle I am trying to get at is not at issue—trying to make things quicker and faster. There are two little things I am always telling clients when I deal with these matters. As surveyors, we are trying to overcome basic failings in human nature. The first is that because disputes become so personal, because they very often relate to people’s own homes, they grow, as I used to say, like little Johnny’s porridge in the mouth. The point is that little Johnny goes red in the face, cannot swallow anything, and you reach gridlock. The other thing is that there is a direct inverse relationship between the objective value of what is at stake and the ferocity and cost with which it is pursued. These are two points I would like to get across. Also, rather like the Access to Neighbouring Land Act, there is nothing to prevent parties voluntarily agreeing, under the shadow of measures such as in the Bill.

To return to the Minister’s more specific reservations, the core difficulty he refers to is the cases where, beyond peradventure, it is not possible to say from the documentary evidence where the boundary is: in other words, there is not that interrelationship between the facts on the ground and the paper title and the interpretation of the legal entitlement.

One main point is where there has effectively been adverse possession. I acknowledge that that is an issue, but it is also axiomatic in such circumstances that it is not possible for surveyors to divine as a matter of the physical evidence on the ground the circumstances which enable them to reach a conclusion. Surveyors are used to dealing with this sort of thing, with the principles of Civil Procedure Rule 35 and the evidential standards. They are used to being able to say what they can and cannot speak to and the evidential basis for it. Adverse possession is a classic case of a probable need to refer to the courts, because this Bill does not aim to deal with that. The Minister and perhaps his department are mistaken in their supposition that the Bill could deal with that; I do not think it can and nor is it intended to. So a bit of unpicking might be necessary there. Accordingly, the Ministry of Justice’s concerns that the Bill might add to the number of appeals or exacerbate the situation in some way is misconceived. I would welcome the opportunity to discuss that with the department to find ways in which we could make it clearer that the Bill does not transgress in these areas, which I and everybody else admit are fundamentally matters of law and not physical, evidential criteria that can be seen on site.

I am grateful to all noble Lords who have spoken. I trust that we can move forward to a further stage of the Bill.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 12.47 pm.