Property Boundaries (Resolution of Disputes) Bill [HL]

Lord Kennedy of Southwark Excerpts

Friday 11th September 2015 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Earl, Lord Lytton, for bringing this Private Member’s Bill forward for debate today. He is a man of considerable expertise in this area, and the intention of his Bill is to resolve property boundary disputes at the earliest opportunity and with the least cost to the individuals concerned. That is a very welcome intention indeed.

We are all aware that matters concerning boundaries can lead to highly charged and protracted legal proceedings, which can be extremely expensive for the parties involved and certainly far more expensive, as the noble Earl said, than the value of the land in question or the boundary in dispute. That situation is of benefit to no one and one we all should all be concerned to remedy.

We had a useful debate on this very issue on 15 January this year, led by the noble Earl. Being able to move forward quickly and consider proposed legislation in this area is welcome progress. I generally welcome the Bill and what it proposes. That is not to say that there are no areas where it could be improved and refined in your Lordships’ House, and I hope we will have a day in Committee to do that.

As has already been outlined, the Bill makes provision for the resolution of disputes concerning the location or placement of boundaries and of private rights of way relating to the title of an estate in land. It seeks to do this by requiring the owner of land who wishes to establish a boundary to serve notice on the adjoining landowner. If the adjoining landowner does not specifically consent to the notice, a dispute is deemed to have arisen. The dispute is then resolved by an agreed surveyor or, where there is no agreed surveyor, three surveyors who shall determine the precise location of the boundary or location and extent of the private right of way. I very much agree with the noble Baroness, Lady Gardner of Parkes, that too many matters are driven towards the courts, and the Bill gives us a clear and straightforward way in which to resolve these disputes.

The matter is not to be questioned in court except through an appeal to the Technology and Construction Court, or perhaps just the High Court, and if no appeal is made within 28 days, the award is submitted to the Land Registry. The Secretary of State shall by regulation approve a code of practice that would set out the form and manner in which the documents are to be served and used under this procedure. Where a party to the dispute seeks to disrupt or not co-operate with this process, they would be guilty of an offence and, on summary conviction, liable to a fine.

I am assuming that the Bill is not going to receive an enthusiastic welcome by the noble Lord, Lord Faulks, but I hope that he can recognise that this is a real issue—a real problem—and that this is an attempt to reduce the costs and have these boundary disputes determined quickly and efficiently for as little cost as possible to the parties involved. The noble Lord on a previous occasion has said that this proposal would not always return beneficial results and suggested that this could be due to the adversarial nature of these disputes and the potential lack of legal expertise held by the appointed surveyors. I agree with the points made by the noble Earl, Lord Kinnoull, in that respect. If the Minister intends to pursue the opinion he stated previously, perhaps he could also address the argument that it is the very expertise of these surveyors in determining these matters that in fact would make the likelihood of successful appeal proceedings less likely. That is because the determination will have been made by a qualified professional who is expert in their field, following a code of practice set out by the Secretary of State on how these matters are to be determined.

It would also be helpful to your Lordships’ House if the noble Lord, Lord Faulks, said that he is of the view that this and a combination of factors would mean that a high number of appeals is likely. That would not be beneficial. Does he expect more boundary dispute appeals to appear before the courts, or would there be fewer appeals but not sufficiently few to justify making the change proposed in the Bill? How did he and his department come to that conclusion—if, indeed, that is the conclusion? Will he share that information with your Lordships’ House by placing a copy in the Library?

It may be that Minister is absolutely right, but I should like to understand what is behind that thinking if he is going to put forward arguments such as those he advanced in January. With those questions to the Minister, I bring my remarks to a close and again thank the noble Earl, Lord Lytton, for bringing this matter before your Lordships’ House. It is a valuable contribution to the debate on these matters and a pointer to where we need to make improvements.