§ 7.12 p.m.
§ Lord Murton of Lindisfarne
My Lords, I beg to move that this Bill be now read a second time.
The Bill has its origins in Law Commission Report No. 151 presented to Parliament in December 1985. It relates to the rights of persons to gain access to neighbouring land for the purpose of carrying out work to their own land. The present law does not provide any general means whereby a person who is unable to carry out necessary works to his own land without access to that of his neighbour can lawfully enter that land without the neighbour's permission.
I should state at this juncture that there is no definition of "land" as used in the Bill. It therefore has the meaning ascribed to it by Schedule I to the Interpretation Act 1978 and so includes buildings and other structures which in law form part of the land and the airspace above the ground.
Some 27 years ago as a Member of the other place I was approached by a constituent with a classic example of what this Bill seeks to rectify. An elderly couple who I shall call A lived in a small house contiguous to another, both built before the First World War and to the same design, with minimal space in the boundary between them. For one reason or another and over a considerable period of time A had fallen out with the neighbouring household who I shall refer to as B.
A's guttering had collapsed because of neglect occasioned by B's refusal to allow A to erect a ladder on the narrow strip of B's land in order to effect repairs. In consequence, A's bedroom on the boundary side was uninhabitable. It was so damp that part of the ceiling had collapsed and part of the plaster on the inside of the affected wall had fallen away. The room was full of mould and the house was moving steadily into a state of dereliction.
A had no legal remedy against B, however unreasonable B's refusal might have been, and, as it so happened, there was a tragic outcome. Problems such as this occur from time to time and can affect rural as well as urban land.
Mr. John Ward, the honourable Member for Poole, has recently been faced with a similar situation. His constituency case is also of an urban nature but rather more complex than the one already described. A 167 householder who I shall refer to as X had an apple tree growing 18 inches from his boundary wall. On the far side was his neighbour's garage. I shall call this neighbour Z. Neighbour Z wrote to X informing the latter that his tree was both overhanging and undermining his garage and demanded that it be removed within 14 days or Z would cause someone to enter upon the premises to remove it and that X would be expected to foot the bill. This was followed up by another letter, this time from a solicitor, alleging progressive damage to the contents of the garage and stating that his client Z would be in order to cut back the branches overhanging his property and that X would be responsible for paying for this work.
On his own initiative, neighbour X cut back all the overhanging branches. He also asked for permission in his turn to enter upon Z's property to carry out some remedial work to the flank wall of his house abutting upon Z's land, where defective rendering was allowing rainwater to penetrate.
After a long history involving solicitors, surveyors and tree surgeons and the voluntary removal of the offending tree by X, even though expert opinion had found this to be innoxious as far as its roots were concerned, permission was offered by Z for entry to repair the flank wall by X but only on condition that X paid Z's legal fees amounting to £250. X was advised by his solicitor not to accept this proposition because it would set a precedent should there be future need to seek permission from Z for entry to attend to X's premises.
So the matter rested for three years until X was about to retire, when he decided to sell his house and leave the district because of the stress occasioned to his wife. His son-in-law wished to buy it, but before it was sold X tried again to come to terms with Z by offering the original £250, only to be told that the licence fee for entry, if I may call it such, was now £555. X declined to pay and his son-in-law Y bought the house without the dispute being resolved.
Two years have passed and letters written to Z by the new owner Y remain unanswered. The leak in the flank wall grows worse and Y's wife is ill with stress caused by the progressive damage to her home. The situation is once more deadlocked.
In view of that sorry tale my honourable friend has introduced this Bill, which he took through the other place in all its stages on 5th July without amendment. As I have already stated, the law does not provide any general right enabling a person to gain access to neighbouring land in order to carry out work to his own land. In consequence a person who enters neighbouring land without any authority does so as a trespasser and renders himself liable to civil proceedings at the suit of the occupier. It is no defence to show that the need for access was compelling or that loss arising to the plaintiff from access by the defendant was negligible.
There is a small number of exceptions to the above, such as easements of varying kinds, covenants, contracts or licences and estoppel rights. Peculiar to 168 London, the London Building Acts (Amendment) Act 1939 may in certain circumstances provide an owner with the right of access to his neighbour's land.
However, generally speaking, reliance for access rests upon good neighbourly relationships in which two (or possibly more) neighbours come to an amicable arrangement whereby A is given permission to enter B's land with a promise to make good any damage caused or, alternatively, B may offer to do the work himself subject to reimbursement by A.
Unfortunately, not all owners of land in its broadest sense are thus amenable; and it could be claimed by some that their boundaries should remain inviolable whatever the discomfort to their neighbours. But, of course, many public authorities already have statutory rights of access to carry out their functions in the interests of the public at large: for example, the Public Health Act 1936 or the Rights of Entry (Gas and Electricity Boards) Act 1954.
It would seem reasonable therefore that there should be a change in the law to cover entry for the purpose of the preservation of land or property; but any such change should be limited both in its nature and its scope and should interfere as little as possible with the property rights of individuals. For that reason the Bill is framed so as to grant a temporary right of access to another's land but only at the discretion of county courts and the High Court, which shall have jurisdiction in all access proceedings.
The temporary right of access should be specifically for "preservation work"—that is to say, work intended to protect and maintain existing land which of course includes things on, in or above the land, as indicated in Clause 1(4) of the Bill. Such work must be reasonably necessary and, in regard to buildings and other structures, may include inspection, repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition. Improvements and alterations contemplated for their own sake are not to count as preservation work and are outside the scope of the Bill: but improvements and alterations which are incidental to preservation work are not so excluded so long as they could not be construed as development.
Access orders would not be obtainable against the Crown: nor would access be given to any neighbouring land that is the highway, because existing law provides adequate means of access under the provisions of the Highways Act 1980. The courts will have the normal discretion as to costs which would be exercisable in accordance with existing principles, including those applicably where any party is legally assisted.
It is always to be hoped that neighbours finding themselves in difficulties can come to amicable agreement before resorting to the law. To my mind it would be rare, but nonetheless unfortunate, if neighbour B were suddenly to find himself respondent to an access order sought by the applicant, neighbour A, without a prior attempt at an informal compromise. For this reason I venture to suggest to my noble and learned friend the Lord Chancellor that he might consider the recommendation in paragraph 3.63 of the Law Commission report that anyone 169 contemplating application to the court could, without having to seek professional assistance, use a suitable pro forma letter to send to his neighbour on the basis of an effective "letter before action" in the hope that the two sides might then come to terms and thus avoid subsequent litigation through having to call into effect the provisions contained in the Bill.
I shall go quickly through the clauses. Clause 1 deals with access orders. Subsection (1) is the operative provision. It enables a person who, for the purpose of carrying out work on one piece of land, requires to enter neighbouring land but is unable to obtain the necessary agreement to such entry, to apply to the court for an order authorising his entry. There is an extended definition here because the applicant's difficulty in carrying out the work may, exceptionally, stem not from the neighbour's refusal of access, but from the refusal on the part of the owner of an easement to allow him to obstruct the easement.
By virtue of Clause 6, the "court" may be either a county court or the High Court. However, Section 1 of the Courts and Legal Services Act 1990 enables the Lord Chancellor to make a jurisdiction order in respect of the allocation of cases between the High Court and the county courts. It is likely that once such an order has been made the vast majority of proceedings under the Act will be handled by the county courts. The phrase "adjoining or adjacent" land covers the possibility that the applicant may need to enter land divided by a narrow strip from the land on which the work is to be done.
Subsection (1) does not define, or impose any limitation on, either the category of person who may apply for an access order or the category of person against whom such an order may be sought. Thus, any person, whether or not he has any legal or other interest in the land to which the work is to be done, may apply for an order and may make respondent to his application any person whose agreement to his entry on the adjoining land he thinks he needs, but cannot obtain. "Land" has the meaning ascribed to it by Schedule 1 to the Interpretation Act 1978.
Subsection (2) prescribes the circumstances in which, subject to subsection (3), the power of the court to make an access order is to be exercised, namely on its being satisfied that without access the carrying out of preservation work would be impossible or substantially more difficult or expensive. "Preservation" for this purpose excludes work designed to improve or alter the land, though improvements and alterations which are incidental to preservation work are not excluded, as I explained earlier in my speech.
Subsection (3) qualifies subsection (2), by requiring the court not to make an access order, notwithstanding that the work is necessary and the entry is required, if the respondent satisfies the court that, notwithstanding the obligations on the applicant arising under Clause 3 or the imposition by the court of conditions under Clause 2, entry by the applicant in pursuance of an order would cause such hardship that it would be unreasonable to make the order. In so providing, subsection (3) puts the burden on the 170 respondent to satisfy the court that no order should be made, once the applicant has made out the case for access to do necessary preservation work.
Subsection (4) deals with the categories of work which fall within the meaning of "preservation", as I have already explained. Subsection (5) enables rules of court to prescribe the procedure to be followed by an applicant who is unable to ascertain the name of a person whom he should make respondent. Rules normally require a respondent to be named.
Clause 2 deals with the power of the court to impose terms and conditions. Subsection (1) provides for three matters which must be specified in every access order. These matters, relating to the extent of the work, the timing of the access and the particulars of the land to which access is to be given, are essential elements in any access order.
Subsection (2) gives the court power to impose terms and conditions for the purpose of minimising any adverse consequences arising out of the entry authorised by the order. Subsection (2) thus imposes a limiting factor on the purposes for which conditions may be imposed and does not give the court a "blanket" power.
Subsection (3) paves the way to subsection (4), which specifies a number of matters which may be included in terms and conditions imposed by the court. Subsection (3) makes it clear that the specifying of these matters does not detract from the generality of the power conferred by subsection (2), but equally does not detract from the prohibition imposed by subsection (5) on making inconvenience or "mere access" the subject of compensation.
Subsection (4) specifies in paragraphs (a) to (e) a number of matters which the court may include in exercising its power to impose terms and conditions.
Subsection (5) ensures that the court's power to impose terms and conditions cannot be used to compensate a respondent merely because an access order has been made or merely because entry in pursuance of the order is inconvenient to him. The words,entry as authorised by the order",make it clear that damages for breach of a condition imposed by the court to avoid or minimise inconvenience are not excluded: they would fall within Clause 4.
Subsection (6) enables the court to make provision for a respondent to be reimbursed expenses, such as professional fees, reasonably incurred by him, notwithstanding that those expenses could not—for example, because they had been incurred before any proceedings were instituted—be part of the "costs" of the proceedings. The court may also require the applicant to give security for any money that may become payable to the respondent under this clause or Clause 3.
Clause 3 deals with the effect of an order. Subsection (1) sets out the legal effects of an access order. Paragraph (a) provides that an access order authorises the applicant to enter the neighbouring land to carry out the preservation work specified in the order. Paragraph (b) provides that an access order authorises the doing of a number of ancillary acts, 171 including the bringing of materials and equipment on the neighbouring land and the entry of the applicant's contractors, and so on. The authority conferred under this provision is subject to the power of the court under subsection (2).
Paragraph (c) provides that an access order imposes on the applicant an obligation to make good the land before his authority to enter expires and to indemnify the respondent against any damage to the land or goods on it resulting from the entry. This, too, is subject to exclusion or variation by the court under subsection (2). The reason for giving an access order under these automatic effects is that they will be appropriate in all but the most exceptional cases.
Paragraph (d) provides that an access order imposes on the respondent an obligation to permit the applicant to do anything provided for by the order. Enforcement of this obligation will be facilitated by the inclusion of this provision, since if the respondent fails to comply with the order the applicant will be able to apply directly to the court for committal proceedings rather than have to apply first for an injunction.
The concluding words of subsection (1) provide for an access order to have the same effect as if the respondent had consented to the applicant acting in accordance with the terms of the order. The respondent will not therefore be able to sue the applicant in trespass (or, in the case of an easement owner, in nuisance) for acting in accordance with those terms. Nor will an applicant entering land pursuant to an access order be liable to prosecution under any provision making it an offence either to trespass on that land or to enter or be on that land without the respondent's consent.
Subsection (2) enables the court to dispense with or vary the effects of an access order specified in paragraphs (b) or (c) of subsection (1).
Clause 4 dealing with enforcement does not provide expressly for the assessment of damages. That is left to the court. In some cases where there has been physical damage to a party's property, it is to be expected that the court will adopt the principles applicable to the assessment of damages for tort. In others, for example, where the applicant has defaulted on his obligation to make good, the court is likely to adopt the analogy for breach of contract. It would not be practicable or necessary for the legislation to cater specifically for every possibility.
Clause 5 deals with the variation, discharge, suspension and cessation of access and other orders made by the court. Subsection (1) enables any party to apply to the court for an access order to be varied, suspended or discharged and extends to any previous order for variation, suspension or discharge of an access order, as well as to any terms or conditions imposed by an order. It also enables a term or condition to be temporarily suspended or to be revived. This ensures that the new regime will be flexible enough to deal with changing circumstances.
Subsection (2) provides for an access order to cease to have effect on the date specified in the order for the cessation of the authority to enter—a terminal date is 172 a necessary feature of an access order. If the work is completed before that date, the respondent will be able, if he so wishes, to apply for the order to be varied accordingly. Equally, if the applicant needs more time, he will be able to apply for an extension. Cessation is without prejudice to the respondent's right to enforce, after that date, any term or condition of the order or any obligation imposed on the applicant, to make good the land and to indemnify the respondent against damage.
Subsection (3) makes it clear that the cessation of an access order does not affect its previous operation.
Clause 6 gives the county courts and the High Court jurisdiction in all access proceedings under the Act. This is in line with Section 1 of the Courts and Legal Services Act 1990 and jurisdiction orders made under it.
Clause 7 contains supplementary provisions relating to the effect of an access order and invalidates any contracting out. Subsection (1) provides for an access order to bind no one other than a party to the access proceedings.
Subsection (2) renders ineffective any agreement, whenever made, which would, but for this provision, have the effect of preventing or restricting a person applying for an access order. The reason for invalidating contracting out is that the scheme would otherwise be undermined.
Clause 8 concerns the Short Title, interpretation, commencement and extent. Subsection (1) gives the Short Title of the Bill. Subsection (2) defines "entry" as including the doing of anything necessary for carrying out works. This extended definition thereby ensures that the Bill, particularly Clause 1, caters for the exceptional case in which the objection to access comes not from the occupier, but from the owner of an easement over the land to which access is sought who refuses to allow the applicant to obstruct the easement.
Subsection (3) provides for the Bill to come into force on a day to be appointed by the Lord Chancellor. Rules of court under Clause 1(5) and a jurisdiction order under Section 1 of the Courts and Legal Services Act 1990 will need to be prepared before the commencement date.
Finally, subsection (4) provides expressly that the Bill is to apply only to England and Wales. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Murton of Lindisfarne).
§ 7.35 p.m.
§ Lord Carmichael of Kelvingrove
My Lords, we can all give a welcome to the Bill and congratulate the noble Lord, Lord Murton, on sponsoring such a helpful measure in the House. His speech was illustrated by examples of what may seem to be minor but are often most distressing social breakdowns.
The Bill relates only to England and Wales. I understand that the legal position in Scotland is somewhat different. I am not sure of that, but I have no knowledge of Scottish situations that quite parallel those illustrated by the noble Lord. I have a feeling that Scottish title to land is perhaps more explicit in 173 allowing some flexibility for those owning or occupying neighbouring land. I am sure that the noble and learned Lord the Lord Advocate will be able to enlighten the House on the point or indicate whether there are equivalent loopholes in Scottish law on which, at a future date, he may think legislation for Scotland would he helpful.
Sadly, the Bill is all too necessary to regulate disputes between neighbours if agreement cannot be reached between them. There is also protection by the courts against unnecessary intrusion. Both these safeguards are unfortunately necessary since bad relations sometimes exist between neighbours. The root cause of the disagreement may have been lost in the mists of time and totally forgotten by both parties. Time can cause quite irrational positions to be taken over what may appear to be quite unimportant matters.
Having given a general and basic agreement to the Bill, I have a few doubts about one or two details. The Bill does not appear to cover damage involving costs. For example, who will be liable for damage caused while exercising a court order? I am thinking of someone chasing a drain or a sewer through a tennis court or a croquet lawn. Will reinstatement be necessary? Who will be responsible for the standard of reinstatement that will be required?
Does Clause 2(5) require some form of words to allow for financial or physical inconvenience? As an illustration, we find more and more in our cities that every piece of private ground is taken up with car parking, in order to get cars off the main roads due to the frequency of needless and heedless vandalism. Someone may require access via a small drive with three or four tenants living in a small block of flats. There may be no way for cars to enter, and people may feel strongly that if damage is caused to their cars because they are unable to use their normal parking place, there should be compensation. The same could apply to a caravan park at the height of the season. If a drain had to he taken across the park, there could be a problem and the owner of the caravan park could claim that people were unable to have access to it.
I am not trying to nit-pick. I am genuinely anxious about problems that I believe may arise. However even with those doubts which may exist only in my own mind and may be quite unnecessary, we would not wish to delay this Bill. However, we would be happy to receive any assurance that the Minister can give us tonight or in writing to assuage any doubts. I hope that we shall see progress with this little Bill which could turn out to be very important for many people involved in the situations that the noble Lord, Lord Murton, has described. We on this side of the House wish the Bill well.
§ 7.40 p.m.
§ Lord Wilberforce
My Lords, there are at any rate two welcome features in the presentation of the Bill this evening. First, it brings before this House a report of the Law Commission that was made in 1985. That step is not universally taken with regard to Law Commission reports. The Government may have 174 taken five-and-a-half years to bring this report out of its pigeon-hole but that is perhaps rather better than par for the course. We should therefore be grateful.
The second good feature was the fair and full presentation given by the noble Lord, Lord Murton. He has enabled us to understand completely what the Bill seeks to do. I hope I may add a point 2(a) as it were. It is interesting and totally not unwelcome that the Bill seems to have been taken over in this House by our friends north of the Border. I am very happy to see the noble and learned Lord, Lord Fraser of Carmyllie, on the Front Bench and to listen to the noble Lord who has just spoken. I am also glad to see the noble Lord, Lord Mackie of Benshie—he will perhaps relate his experiences in this matter—and the noble Baroness, Lady Saltoun of Abernethy, who is seated behind me. The Bill appears to be a Scottish affair. That is remarkable, as it does not apply to Scotland. Nevertheless no doubt our friends north of the Border will be able—as the noble Lord, Lord Carmichael, suggested—to give us the benefit of their experience, as in most matters pertaining to land the Scottish law is centuries ahead of ours. It is much more practical and much more sensible than the English law in this area. We hope that we may draw something from the wisdom of our Scottish friends.
So much for the good points. However, there are certain matters which give me at any rate cause for concern. The noble Lord, Lord Murton, said quite accurately that this Bill was taken through all its stages in the House of Commons without amendment. One ought to be a little more precise and state that the Bill was taken through all its stages on a Friday afternoon, 5th July, together with a great number of other Private Bills. It was taken through without a word of explanation or a moment of discussion. It was simply passed on the nod. Yet it is a Bill of considerable interest to the public, as the Law Commission's report states in paragraph 1.7. The report states that the Bill is of general public interest. The Bill is one that greatly affects citizens' rights in a sensitive area; namely, a man's right to his home or castle.
The Bill may involve the homeowner being subjected to inconvenience without compensation. He may be involved in litigation in a county court. He may suffer physical damage to his property or he may be harassed by people who want to make life difficult for him. Are not all those considerations worth a moment of legislative time? I should have thought they were. The fact that the Bill was treated so rapidly by our honourable friends in another place makes it all the more important that we in this House should give it some attention. If we cannot revise this Bill, our claim to be a revising Chamber is rather hollow.
It is certainly not a good omen that the Bill comes before this House in the dinner break, late in the Session and at a time short of the 14 days prescribed in the Companion to the Standing Orders which should elapse between consideration given to a Bill in the House of Commons and the consideration given to it in this House. The Bill has been very well described by the noble Lord who presented it. I shall not attempt to repeat his points, but I wish to underline one or two 175 features which seem to me to be worthy of consideration. In general terms the Bill allows entry onto a person's land, including entry into his house or garden, to carry out one or more of a series of works. The Bill also provides for compensation to be paid for any damage.
The examples given by the noble Lord, Lord Murton, suggest that there is in this area a need to be met. There is a problem in this area, but the question is how that need should be met and how the problem should be solved. Does the Bill go too far? Should the provisions stated in the Bill be accepted in the interests of the public? At first sight it appears that the rights given under the Bill are rather exceptional and closely limited. Clause 1(2) (a) states that a court shall make an access order only if it is satisfied that,the works for which the entry is sought are reasonably necessary for the preservation of the land".The Law Commission's report states that entry to a neighbour's land is to be limited to preservation work. That all looks very nice, but the Bill itself appears to go far beyond works that one would normally consider as being connected with preservation. The Law Commission report quite fairly accepts that factor. On page 55 of the report the term "preservation" is used in a very wide sense. Preservation work is not considered merely as work that stops something from falling down or maintains it in existence. The term covers a wide range of factors.
Clause 1(4) (a) of the Bill states that an access order may be made for the purposes of carrying out,works of repair … improvement, decoration … or demolition".The demolition of buildings is an extraordinary version of preservation. Subsection (4) refers to other works for which an access order may be made. Clause 1(4) (g) refers to those well-known sources of neighbour disputes and irritation—hedges, trees and shrubs. The noble Lord, Lord Murton, mentioned an apple tree. I do not think such a tree is dealt with in the Bill, although no doubt the consequential argument that was mentioned is dealt with.
Under the terms of Clause 1 a man may enter my land to clip my hedge. He may chop branches off a tree or shrub, check on the roots or even replace a tree or shrub. All those provisions give the word "preservation" a wide interpretation. That is not the end of the matter. A man who is working on my land, having gained entry to it, may leave his materials and plant on my land. He may leave the debris resulting from his work on my land; that is to say, the lopped branches, rusty gutters or demolished structures. We all know that works are seldom or never completed on time. One has visions of tools, painting materials and ladders being left on one's land for weeks while a workman is on holiday or off on another job. Those consequences are automatic on any order being made. They follow from the terms of Clause 3 unless a court decides not to apply those provisions. An order that is made may automatically result in those effects.
Even that is not the end of the matter. A neighbour who wishes to have the works carried out may bring as many people onto his neighbour's land as he wishes. If I happen to be the neighbour involved, I would not 176 have the opportunity of vetting those people. They may be unidentified cowboys who have no respect for my property. I have no means of checking on those people. Again that is one of the automatic consequences of Clause 3. Were not all those factors worth a moment's examination by our legislators?
It will be said that all of these provisions are discretionary and are under the control of the courts, which may impose conditions, protections and other factors. There are certain protections in the Bill but there are also some drawbacks. First, the owner is obliged to go to the court, which may not be in his home town, or he may be obliged to employ a lawyer and probably an expert such as a builder. He may possibly have to obtain legal aid. My next point will no doubt be taken up by other noble Lords. The owner will not even be sure of recouping his costs.
County courts are particularly busy tribunals and they will be much busier in the next few years when the work of the High Court will be largely devolved onto the county courts. No doubt a Chancery judge, with the help of a surveyor or a good builder, and with the parties present, could draw up an excellent and workable scheme that included time limits, notices, restrictions, guarantees, deadlines and other provisions. But all of that takes time, especially if a court is to give consideration to the personal needs of a man, his wife, his children, his roses and his lawn. Can a busy county court be expected to devise a comprehensive scheme of protection on all those lines?
The Bill is a lawyer's construction, and from that point of view a very good one. It is essentially an attempt to put into a straitjacket of legal procedures what are essentially rules of good neighbourly behaviour. Although we always hear of the cases in which neighbourly behaviour breaks down, we should realise that for each of those there are probably a hundred cases in which such matters are arranged amicably between neighbours, with a small payment and a little negotiation and without the need to go to court.
Finally, your Lordships will wish to bear in mind that this is not an uncontroversial Bill. It is not a simple, technical Bill which one would expect to put before the House and to be passed without undue consideration on the basis that the Law Commission has gone into the matter and there is no need to do the work again. As the report shows, there has been a great deal of consultation. There is a long list of those who have been consulted. However, the views expressed in the Law Commission report are by no means unanimous. For example, paragraph 1.8 indicates that there have been considerable divergences of view. There are alternatives. There are minority views, the merits of which ought to be looked at before the law is passed.
There is a marked difference of opinion on the very important matter of compensation for access which is referred to in paragraph 4.56. There are a variety of views as to whether access should be given when "strictly necessary" or when "reasonably required" which are mentioned in paragraph 4.102. Consideration is required as to the merits of Clause 177 1(2) (a) and (b) which is expressed in rather broad terms. Consideration should also be given to the important issue of compensation for inconvenience, and: here is the important issue of costs. There is also the very interesting suggestion made by the noble Lord in opening the debate as to whether a pro forma letter ought to be sent. I agree with him that it would be a very useful piece of machinery. That is mentioned in paragraph 3.63 of the report.
All those matters deserve consideration in this House. They may or may not lead to amendments. I hope that we shall not hear the argument that if we try to amend the Bill it will be lost. If that argument were to prevail it would mean that we accepted unicameral legislation, made by a Chamber which has not thought fit to give one moment's consideration to the Bill. There are many experts in this House, not only lawyers but other sensible people who know what the rights of a citizen in relation to his house ought to be, and I hope that your Lordships will give this Bill careful consideration. We should not be rushed into telescoping its stages. We should be given an opportunity to consider it in Committee and to give proper consideration both to suggestions made today and to others which may come before the House.
§ 7.53 p.m.
§ Lord Coleraine
My Lords, I congratulate my noble friend Lord Murton of Lindisfarne on taking this opportunity to introduce the Bill. I wholeheartedly support some parts of the Bill but have reservations about others. It is, as the noble and learned Lord has just pointed out, a controversial Bill in several respects. In general, I support its aims and the way in which it sets about achieving them.
My own two experiences of the problem—one professional and one personal—have related to the common problem of a house wall on a boundary and the need to repair the house wall. I do not recall difficulty arising in either case. However, I accept that, where disputes arise between neighbours—and all lawyers know that the most common source of dispute is the boundary—difficulty can arise. It is also the case that it may be difficult to sell a house which has such a defect in its title. The Bill deals admirably with that kind of problem.
The Country Landowners' Association discussed the Bill with me today. The association feels that the Bill does not begin to take proper account of the position of farmers and landowners. It asks why, for example, a large-scale extractor of timber, who may have many miles of forest road on his land, should be entitled to require his farmer neighbour to allow him to take felled timber out over the farmer's fields, perhaps over a road which the farmer has installed at his own considerable expense, without any liability to pay the premium which he has always had to pay in the past and which represents some part of the benefit which the timber extractor has gained as a result of the co-operation of his neighbour. I see considerable merit in the CLA's point that all of the consideration behind the Bill has been directed at the problem of disputes affecting property owners in the urban and semi-urban context.
178 I should like to turn now to some detailed aspects of the Bill and ask some questions which my noble friend or my noble and learned friend may be able to answer when they sum up. Why does Clause 1(2) provide that the court "shall" make an access order if satisfied on the two points set out in that subsection unless the respondent satisfies the court on the grounds of hardship set out in Clause 1(3)? As I read paragraph 3.42 of the Law Commission report, the Law Commission decided that a general right of access should arise only at the discretion of the court. Why, then, does the clause not give the court that discretion by using the words "may if it thinks fit" instead of "shall"? It seems to me that the points on which the court is required to be satisfied do not involve discretion. I may be wrong, but I do not understand the liberal references to reasonableness as creating a discretion.
I am advised by the CLA that plc corporations and statutory undertakers with compulsory powers to enter land to construct works, to lay pipes etc., normally exercise their rights by negotiation. When they take the rights to lay the pipes and build those works, at the same time they will negotiate rights of access for the very necessary powers which they will need over the years, perhaps every year, to maintain the pipes and to repair and oil the works. I am advised by the CLA that in some cases the compensation payable for rights to enter land for such purposes may amount to as much as half or 75 per cent. of the total compensation payable.
Under the Bill, if enacted, such undertakers will not need to negotiate access rights when they negotiate the rights to carry out the works in the first place. The CLA is concerned that, instead of exercising compulsory powers and paying compensation for access, undertakers will exercise rights under the Bill. Because of their statutory powers under Clause 1(2) (b) they will not need to satisfy the court they will merely have to satisfy the "reasonably necessary" test of Clause 1(2) (a).
Clause 1(3) provides that:The court shall refuse to make an access order if it is satisfied by the respondent that … such hardship will be caused by the entry as to make it unreasonable to make the order".That does not go far enough towards the protection of the respondent. I should have thought that the court would refuse to make the order if the respondent satisfied it that it was unreasonable to make the order by reason of hardship or for any other cause.
My next inquiry is: why is inconvenience not to be compensated for under the Bill? If, to save himself large sums of money in repairing his property from his own land, someone wants to cause noise and dust and intrude on the privacy of his neighbour, making his neighbour's life a misery, surely he should pay some compensation.
I now turn to Clause 7(2), which precludes in a general way any contracting out of the provisions of the Bill. I certainly envisage cases in which it will be dangerous to let, for example, a landlord granting leases contract out of the provisions of the Bill as regards the rights of entry between one part of a building and another. However, I can also see a case 179 in which a landowner—I am talking, for example, about the owner of a house with two or three acres of land—may have obtained planning permission for that land and sold two acres of it on the basis that houses would be built in such a way that no access would ever be needed to his land for the repairing of the houses on the land that had been sold. Then the person who has built the houses may have gone to the planning authority and achieved a more financially desirable layout which has thwarted the intentions of the person who sold the land. Alternatively, it may well be that the person who sold the land included in the sale land which could have been used for access purposes, but the developer has sold that piece of land for a large price. He may come back to the court a few years later saying that he cannot obtain access to his land to repair the houses on it, and requesting an order. In those circumstances, it would seem reasonable for the owner of the land, when selling it, to contract out of the provisions of the Bill.
The final point of difficulty that I find with the Bill concerns the question of costs. I should be grateful if my noble and learned friend would explain what Clause 2(6) means when it states that:The court may make provision for the reimbursement by the applicant of any expenses reasonably incurred by the respondent and not recoverable as costs".It appears, at least on first reading, that the subsection assumes that, when an access order has been made, the respondent will be entitled to his costs. I see nothing in the Bill, apart from that tangential reference, to suggest that the normal rule does not apply. As a result, the successful applicant will obtain not only his access, but his costs. When introducing the Bill, my noble friend said that the normal rule as to costs would apply.
The implication of paragraph 3.48 of the report is that, because it will be obvious whether an application will succeed, an unsuccessful respondent should pay the costs. I readily concede that an unreasonable unsuccessful respondent should pay the costs. It seems right that a respondent should pay the costs, for example, where he is clearly shown to have acted unreasonably because he did not permit his neighbour, by agreement, to come on to his land, bring a ladder into the garden and repair a roof slate, but instead forced the neighbour to go to court. That is one situation in which the Bill might help because it will stop owners being unreasonable when they receive requests from their neighbours to allow them onto the land. They will know that they cannot go to court because they will have an order for costs made against them and the order for access will be made. However, I doubt whether in real life the situations to which the Bill will apply will be as simple as that.
It is equally likely that when an application to the court is made there will be questions as to whether hardship will be caused by granting the application, or whether the carrying out of the works will be substantially more difficult or expensive without entry to the land. Those are cases—I refer especially to those cases in which the applicant may save a great deal of money if he obtains his right of entry—in which lawyers and judges might come to different 180 conclusions and give different advice. Those are not matters on which the result of an application can be predicted in advance with any certainty and in which one can reasonably say that someone should not have resisted the application. Because the Bill confers a special and exceptional right of entry on to another person's property, it should be only in exceptional cases where that person—the respondent—has been shown to be unreasonable in resisting the application that the respondent should not be awarded the costs of the application. If that is not the case, there will be many instances in which small people threatened with a court application by larger interests—perhaps commercial interests—will simply give in for fear of the expense and consequences of a court action.
There are a number of points in the Bill which should be considered. I join with the noble and learned Lord, Lord Wilberforce, who thought that it should be given proper consideration by the House. I hope that that will be so.
§ 8.8 p.m.
§ Lord Mackie of Benshie
My Lords, my name was meant to go down on the speakers' list but, as a result of an oversight, it did not do so.
I have listened with dismay to the speeches of the two learned lawyers who have spoken. Their speeches show that neighbours should be sensible and should not go to law. There is an old story in Scotland which no doubt everyone has heard, but that will not stop me telling it. It concerns two sheep farmers in the braes of Balquhidder who quarrelled. Eventually, they were foolish enough to go to law and both went off to Edinburgh to seek a lawyer. One chap was explaining his case when the lawyer suddenly held up his hand and said, "I'm sorry, but I'm acting for your opponent. I'll give you a letter to a good lawyer". So he scribbled a note, sealed it and handed it to the farmer who, not being a fool, when he got outside thought that he had better open the letter, which said, "Dear Geordie, two rams are fighting on the braes of Balquhidder. You fleece one and ill fleece the other". That appears to be a lesson to all of us.
The two pathetic cases quoted by the noble Lord, Lord Murton, show that there are times when, unbelievably, there is no redress for some poor householders against neighbours who stop repair work which is necessary to stop the house falling to bits. I hope that the noble and learned Lord the Lord Advocate will assure us that foolishness does not pertain in Scotland and that there are methods whereby in Scotland an unreasonable neighbour, or rather the neighbour of an unreasonable man, can be protected.
Having said that, it is obvious from the words of the two experienced lawyers who have spoken that one must examine the consequences. However, as regards the principle, I have no doubt that it is absolutely scandalous that people can be left in that position without any recourse to law. It will be good if the Bill puts that right.
The noble Lord, Lord Murton, seemed to indicate that a repair was quite a reasonable cause for which to obtain an order but that an improvement, unless it 181 simply resulted from the repair, was not. I wonder whet her he could enlighten us on that point. It would appear to me to be reasonable that if a man wanted to improve his house and that did not affect his neighbour, he could apply under this legislation to have it done. However I believe that the Bill is necessary. The illustrations which have been given prove it.
§ 8.10 p.m.
§ Lord Fraser of Carmyllie
My Lords, I should like to begin by saying that my noble and learned friend the Lord Chancellor has asked me to convey to the House his apologies for not being able to be present tonight. I must tell the noble and learned Lord, Lord Wilberforce, that this is not a matter of a Scot taking access to neighbouring land. My noble and learned friend is at a state banquet for the heads of government who are attending the 1991 Economic Summit and I have been asked to speak for the Government in his place.
I have no doubt that my noble and learned friend will follow this debate with great interest. In particular, I suspect that he will be keenly interested in the support that the noble Lord, Lord Murton, gave to the proposal for pro forma letters, which is to be found in paragraph 3.63 of the Law Commission's report. I congratulate him on having introduced his Bill so eloquently, and with such pertinent and poignant examples. I echo the congratulations that he extended to Mr. John Ward, the honourable Member for Poole, who introduced the Bill in another place. As the House will be aware, he did not have the opportunity to speak, and for that reason I entirely accent the comments of the noble and learned Lord, Lord Wilberforce, about the desirability of having some debate in this Chamber so that at least the issues that gave rise to this proposed legislation should be fully understood.
As noble Lords will appreciate, the Bill does not extend to Scotland. But I hasten to add that I do not come to the Dispatch Box trying in any sense to indicate that Scotland has solved the problem or that in this particular area of law it can claim any superiority. As in England, there is no such general right of access to neighbouring land in Scotland. It is only possible if there is some statutory or contractual right or a right arising out of land law. It is certainly not completely general.
On the other hand, the land law of Scotland is very different from the law of England. While there may be those who think that some such legislation ought to be provided in Scotland, I should most firmly counsel against any effort to extend this Bill to Scotland. It will be readily appreciated that it would not happily sit with the rest of Scottish law. Curiously enough, although there have been marked problems on this side of the Border, the situation does not seem to have given rise to quite the same difficulties North of the Border.
It is right to congratulate the Law Commission. The noble Lord, Lord Murton, has already drawn attention to the fact that the Bill had its origins in its report which was published in 1985. The matter was 182 first referred to the Law Commission in 1978. With the thoroughness that has for long been the hallmark of the Law Commission's work, it issued in 1980 a working paper inviting comments on its provisional proposals. The paper attracted a considerable response from the public as well as lawyers, surveyors, professional bodies, government departments, statutory undertakers and others. One reason for the size of the public response stems from the fact that the publication of the working paper was coupled with the distribution of free copies of a pamphlet which summarised the main issues discussed in it. That was one of the earliest examples of a useful additional method of giving greater publicity to law reform proposals adopted by the Law Commission. I am told that the project was mentioned on the Jimmy Young radio programme and that in turn prompted a great many further responses from the public to the Law Commission.
That Law Commission report identified the crucial point: the present law of England and Wales does not provide any general means whereby a person who is unable to carry out necessary work to his land without access to his neighbour's land can lawfully enter that land without the neighbour's permission. As my noble friend pointed out, the right of access may exist or arise in particular cases but there is no general right. That has led to a number of cases in which extreme hardship has been caused. Buildings have fallen into disrepair, which has an adverse effect not only on the properties themselves but also on the lives of those who live in them. My noble friend gave details of a number of such cases. Over the years similar cases have been drawn to the attention of the Lord Chancellor's Department. That is what led to the matter being referred to the Law Commission in the first place.
The Government fully support the Bill. A little while ago they announced that they had accepted the commission's recommendations in the report. Unfortunately the Government were not able to find the necessary parliamentary time to include the Bill in their own perennially busy legislative programme. It is particularly pleasing therefore that my noble friend and the honourable Member in another place have been able to find an opportunity to bring forward this measure.
The contents of the Bill have been carefully and fully explained, but perhaps I may single out a few matters within it. The Bill enables a person who, for the purpose of carrying out work on one piece of the land, requires to enter neighbouring land, but is unable to obtain the necessary agreement to such entry, to apply to the court for an order authorising his entry. The circumstances in which the power of the court to make an access order is to be exercised are prescribed in the Bill in Clause 1(2); namely, on the court being satisfied that access is necessary for the carrying out of the preservation work. The court is required not to make an access order notwithstanding that the work is necessary and that entry is required if the respondent to the application satisfies the court 183 that, whatever conditions are imposed, entry by the applicant would cause such hardship that it would be unreasonable to make the order.
I listened carefully to what my noble friend Lord Coleraine had to say about Clause 1(2). However, it seems to me that the Law Commission has attempted to balance carefully the respective rights of neighbours. It has put forward a scheme which allows for access to be taken in all circumstances in which one would generally think it appropriate but which allows for that entry to be refused where there is hardship.
Although Clause 6 provides that both the High Court and the county courts are to have jurisdiction, in practice applications will be handled by the county courts, as the noble and learned Lord, Lord Wilberforce, anticipated. I was glad to hear from those who contributed to the debate that the Bill is generally welcomed. I appreciate that there has been anxiety in some quarters about the effects of the Bill on the rights of individual landowners who fear that the Bill will deprive them of the peaceful enjoyment of their property. With respect in particular to the Country Landowners' Association (which I too have met), I consider that a number of fears are in danger of being exaggerated. I understand the arguments that have been advanced with regard to statutory undertakers and others; but, as I am sure the association is aware, my view is that after examining Clause 1(1) (b), it would properly reach the conclusion that a statutory undertaker could not by-pass the present arrangements that have to be made because the provision is:Where a person … for the purpose of carrying out works to land … does not have the agreement of a person … whose agreement to the entry he needs".In the case of the farmer and the statutory undertaker who has a statutory right to enter the land, it cannot be said that he is a person whose agreement to the entry the applicant needs. He is already entitled to take that entry without securing agreement.
First, the type of work for which access is to be available under the scheme is limited to preservation work. As the noble and learned Lord, Lord Wilberforce, pointed out, the statutory definition of "preservation" in the Bill is possibly wider than most people would consider fell naturally within the word "preservation". Nevertheless the type of work permitted is clearly spelt out. Most importantly, access for the purposes of constructing new buildings is clearly outwith the scheme.
Secondly, the right of access under the scheme is not a permanent right. It will subsist only for the purpose of carrying out the particular project of work for which the right of access is sought—a one-off right to which a terminal date will be fixed by the court.
Thirdly, as has been explained, the court will have power to impose conditions on an access order with a view to minimising the neighbour's inconvenience and loss of privacy, reducing security risks and the risks of financial loss, physical damage or personal injury, ensuring that the work is done properly and quickly and awarding compensation if appropriate. The noble Lord, Lord Carmichael, seemed to consider that there 184 was no provision for compensation. Perhaps I may advise him that if he considers Clause 2 he will find such provision.
Provision is certainly not made for an award of compensation in respect of inconvenience, to which my noble friend Lord Coleraine referred. He will find that there is a useful discussion on the matter within the Law Commission Report. It begins conveniently at paragraph 4.52. Interestingly enough, the provisional proposal was that damages or compensation for inconvenience should form part of the scheme. However, for the reasons spelt out at paragraph 4.52 and more fully at paragraph 4.54 it reaches the conclusion that compensation for inconvenience should not be allowed.
I am confident that if the courts apply the principles set out in the Bill, cases of undue hardship caused to neighbours upon whose land entry is sought will be kept to a minimum.
Finally, my noble friend Lord Coleraine asked a question about costs. As I am sure he appreciates, there is very little in statute about costs in the High Court and county courts. Section 51 of the Supreme Court Act 1981 is the relevant provision which gives the courts a general discretion. Different rules therefore can be applied in this situation, although there is no reason to suppose that the courts would apply them in the absence of any provision in the Bill.
On behalf of the Government I wish my noble friend every success in getting this small but worthwhile measure on to the statute book. I shall avoid the error of suggesting to the noble and learned Lord or others that this House should not consider amendments if it is of the view that they are desirable. However, it will be clearly appreciated that the Bill had to be introduced quickly in another place. It is a valuable small piece of legislation. I hope that our consideration of it will not impede or damage its prospects of reaching the statute book.
§ Lord Murton of Lindisfarne
My Lords, I thank noble Lords who have been kind and considerate enough to remain to discuss this short measure, in particular, sadly, in front of a fairly empty Chamber and rather late in the Session.
Perhaps I may explain my difficulty to the noble and learned Lord, Lord Wilberforce. The Bill came to this House within the normal 14 days' notice. My honourable friend in the other place was able, somewhat to his surprise, to get the measure through another place virtually on the nod. He had not expected that. We are now up against a difficult dateline. As I understand the position procedurally, if we were to amend the Bill at Committee stage and were to send it back again to another place, that House is not in a position to receive it because the last day for Private Members' business has passed. We shall have to consider carefully whether to proceed with the Bill as it stands or to amend it at the next stage, in which case I fear that it will fall and will have to be re-introduced at some other time. However, that is for your Lordships to decide. I simply say how grateful I am to those noble Lords who have spoken.
The noble Lord, Lord Mackie, raised the issue of improvements. If one carries out a repair one is 185 authorised to do a minor improvement. For instance, if one's wooden window frame is falling to pieces, it would be quite in order to put in a better frame, perhaps double-glazing. It is only intentional improvement which is not allowed. Work which is incidental to preservation is all right so long as it cannot he construed as development. If alterations and improvements are contemplated for their own sake, that does not count as preservation work.
It is a long Law Commission report. Although I have read it two or three times, I do not pretend that cart remember all that is said in it. As the noble and learned Lord, Lord Wilberforce, said, it is clear that 186 there are questions. It is not necessarily only a technical Bill. However, I have to leave the matter in your Lordships' hands. I commend the Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.