Property Boundaries (Resolution of Disputes) Bill [HL]

Earl of Lytton Excerpts

2nd reading (Hansard): House of Lords
Friday 9th December 2016 Lords Chamber

Moved by

[The Earl of Lytton]

Relevant document: 9th Report from the Delegated Powers Committee

[The Earl of Lytton (CB)]

My Lords, before I get into the meat of the issue, I will express my thanks to the clerks for their cheerful and ready assistance in this matter, to the Library and its researchers for their excellent briefing notes, to the usual channels for their unfailing courtesy, and to the protagonists in the previous bit of business for allowing me a slot to introduce this Second Reading.

As your Lordships will know, I am a practising chartered surveyor, and one of the things I get involved with is boundaries, rights of way and title. I also chair the boundaries and party walls working group of my professional body, the Royal Institution of Chartered Surveyors. I pay tribute to a couple of people in the RICS, in particular Martin Burns and James Kavanagh, who have been great supporters of the Bill, but also to a perhaps little-known organisation known as the Pyramus & Thisbe Club, which is primarily involved with things like party walls but which is also supportive of this. In that breath, I especially thank Andrew Schofield, who has been a great source of support, and that great international boundary expert David Powell. There have been some who do not support the Bill but do support the need to improve things. I am grateful to them, and to the members of the public who have spontaneously written to me to say what a lifesaver a Bill such as this would have been for them.

The Bill would provide, in fundamental terms, an alternative dispute resolution facility where boundary and rights of way disputes arise—something that does not involve the courts or tribunals, is more compelling and conclusive than mediation, saves time, cost and risk, reduces antagonism, and is rooted in the paper title but is evidenced with regard to the physical facts on the ground. In short, it puts the physical evidential basis first and the legal process second—because for most of these contentious cases involving boundaries, the on-site evidential basis is the most effective key to getting resolutions.

Many people have asked me about the scale of the problem, which is extraordinarily difficult to identify. Clearly, it is not large in the context of some 30 million or so titles in England and Wales. But it is likely—according to the best estimate I can obtain—to be in excess of 10,000 new cases annually, which is not an insignificant number. Not all of these turn into disputes that get into the courts. My long-standing acquaintance, Jon Maynard, maintains a marvellous boundaries information resource on the web and is able to identify unique new inquiries and downloads of various bits of information he has. On that basis, and having consulted with him, I believe that in excess of 10,000 cases is a fair estimate—and practitioners believe that the situation is getting worse.

Noble Lords may ask, why take a stand on a small percentage? Because clear boundaries are pivotal to the certainty that necessarily underpins ownership, and because of the contagious effects of disputes relating to them. It is a contaminant to the prospects of sale, to property values and to lending and borrowing, never mind the not inconsiderable human cost. The legal and judicial process and the absence of any available binding alternative dispute resolution process currently give rise to high costs, delays, inconvenience, the opportunity for lasting discord between neighbours, stress and the resultant adverse effects on families and relationships—in short, a general canker on what is often the most valuable asset most people will ever possess: their property.

The intrinsic value of what is in dispute is often small, but the costs in conventional litigation can quickly overtake all else and themselves become the main point of contention, at which point the original purpose of the argument and the ability of the parties to back out is severely impaired. Such patterns of inverse proportionality border on insanity. No wonder the judiciary often expresses its dislike of these cases. It also means that fair justice is often overtaken by financial muscle—in other words, the richest party wins.

Boundary disputes occur fundamentally as a modern response to a legacy of past procedures and processes which have not kept up with modern demands. This is not a criticism; it just so happens that that is where we are. More recent pioneering Administrations have been able to introduce other systems, such as cadastre, which for them can be more useful. But we have a long heritage of the way in which we have transacted properties in the past. The title plans at the Land Registry are based on Ordnance Survey mapping, which has evolved since the 19th century. The mapped data may of course be out of date, things may change on the ground or there may be subdivisions—and there may even be basic compilation or survey errors because the information has simply been carried forward from one edition to the next. That can mean that lines on the map are not shown where they should be, there may also be transposition errors from original deeds to more modern instruments, and deeds may be lost or even destroyed.

In any event, Ordnance Survey plans have inherent limitations in respect of scale, relative and absolute position and cartographic practices, which, as I mentioned, have changed over many years, and which certainly go back to long before modern digital survey techniques became commonplace. The baseline relative accuracy can easily mean a discrepancy of 225 millimetres—nine inches, to noble Lords who prefer imperial measurements—across a typical urban back garden width of some 7.6 metres, or 25 feet. In the countryside, this discrepancy can be much greater. As I say, this is the baseline discrepancy. Sometimes it can be much greater than that, even in urban areas, and sometimes of course it can be less. However, it shows up one of the problems we have with the increasing demands that are placed on boundary positions.

There is another legacy issue. Often, properties and their boundaries were badly described in the first place, with plans that did not tally with the description or were simply poorly drawn up—in other words, sloppy conveyancing practices for which my own professional forebears and those of conveyancers should rightly accept some criticism.

Both Ordnance Survey and the Land Registry couple their plans with disclaimers. Ordnance Survey states that a line on the plan is no indication of a boundary. In fact, it does not tell you what the line actually represents at all. That is where surveyor skills come in—to try to identify what was intended to be mapped. For its part, the Land Registry relies on something known as the general boundary rule, with no warranty as to boundary position or extent of land. Unfortunately, this whole process is not intuitive and requires an understanding of mapping and the finer points of relative and absolute positioning to make sense of it.

The Land Registry’s website states that it,

“will reflect what we conclude to be a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping”.

So no resurvey there. It continues:

“Unlike the tolerances applied to Ordnance Survey mapping, there is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the general boundary mapped on a Land Registry title plan and the position of the legal boundary”.

Such a guarantee of property title as there may be is thus governed by a somewhat “there or thereabouts” approach to registration. There is no particular harm to this in broad principle; only rarely is absolute precision required for title registration purposes, and then it is usually to prevent a dispute escalating. But the arrangement is ill understood by the layman and creates the opportunity for disputes because of the need for greater precision for other, more demanding situations, such as building extensions or control of boundary features such as trees or ditches.

I move now to the essence of the Bill. First, the main change in the Bill from the previous version I introduced in the last Session is set out in Clause 8, which relates to the authority of surveyors. It was felt that this needed clarification. I hope that noble Lords will agree that it is a good deal clearer than what went before. There is also an amended reference to appeals to the High Court to take out a specific reference to the construction court. That amendment was made following representations to me from one of its senior judges.

The Bill provides a trigger for dispute resolution. This is set out in Clauses 1 and 2 in respect of situations where an action on a boundary dispute—in other words, legal proceedings—has already commenced. Clause 3, by contrast, applies where an action has not yet commenced but where an owner wishes to establish a boundary position. In other property areas such as party walls, with which I am very familiar, landlord and tenant, and so on, there are contractual or statutory triggers for dispute resolution—but not with boundary issues because no contractual arrangement as such exists. The Bill would change this—a fundamental shift that I need to point out. Clause 4 provides for a penalty for non-compliance. This is simply an anti-avoidance provision.

Clause 5 is the meat of the dispute resolution process. The antecedents for this are in the Party Wall etc. Act 1996, which I was privileged to take through your Lordships’ House. This provides for a resolution between surveyors appointed by either party or by a single agreed surveyor acting for both. The costs do not fall on the public purse but are met by the parties. The mechanism is tried and tested. The clause contains measures to prevent the process being frustrated but also provides for an appeal mechanism to the courts, which is where one would expect the matter to go on points of law.

Clause 6 governs the types of persons who can be appointed as surveyors under Clause 5—namely, those who are members of, and are regulated by, an appropriate professional body and who are governed by regulations made by the Secretary of State. Clause 9 links to this by providing for a code of practice to be drawn up by the Secretary of State.

Clause 7 relates to service of notice and directly mirrors provisions in the party wall legislation. Clause 8 relates to essential powers of entry and, again, follows established party wall practice. Clause 9 I have just referred to. Clause 10 relates to offences, Clause 11 to recovery of sums due, Clause 12 to exemptions for the Inns of Court, and Clause 13 to Crown exemption. Clause 14 is the interpretation section. All of them follow closely the party wall legislation provisions. So I might ask: what is there not to like about a relatively short Bill that deals with all these issues? There have been criticisms and I will deal with some of them because I think it is only fair to give a complete picture.

The first is that boundaries touch and concern title and thus are the proper preserve of trained legal professionals. To put it another way, it is inappropriate that surveyors, as a professional group, should by virtue of “determining” the position of a boundary decide the ownership of real estate—ergo, this is the exclusive preserve of the legal system and lawyers. Property title consists, first, of a paper title, allied to the legal construct of ownership. This may indeed be a matter for lawyers—although, given that members of my profession frequently advise on legal documentation in cases concerning, for example, leases, options, planning agreements and other contractual matters of a legal nature, as well as property deeds, I do not concede the totality of the premise. Crucially, the parameters of property ownership also rely on physical evidence on the ground, requiring the identification of features, knowledge of cartography and possibly construction practice, and competence in evaluating these factors with the assessment and measurement of property—areas in which the surveying professions have uniquely relevant training and experience. And as the Bill allows for appeals, I fail to see the problem.

The third matter is that the Party Wall etc. Act 1996 and, now, this Bill provide a state-regulated way of giving a party a right that they did not have before—for instance, in allowing trespass. I regard “trespass” as a peculiarly tendentious term, but maybe the legal profession has a slightly different take on it. Boundaries embody the concept of a dividing line between ownerships, and it is axiomatic that there are thus two owners at any given point, each with an interest in it and in the facility of establishing its position with reasonable accuracy.

There is also an overriding public interest in not allowing disputes to arise that cannot readily be disposed of, thus becoming a contagion. Such situations also give rise to significant malpractices—opportunities for bullying and harassment, deliberate obstruction of property transactions, settling of old scores and the like. One such device is to veto reasonable and necessary access to check facts. It is noteworthy that the Access to Neighbouring Land Act 1992, which came out of a Law Commission report, also provides for access to a neighbour’s property in certain prescribed circumstances. So I reject that criticism also.

The next criticism is that rules under the Land Registration Act 2002—especially Rules 118 and 119, which are to do with trying to register determined boundaries—could be adapted to provide a solution. Along with others, I looked at Rules 118 and 119, and it is clear that they effectively operate only where there is consensus—so there is a block on that.

What are the alternatives? Some have said to me that the Land Registry should be both registrar and adjudicator. However, it appears that the Land Registry stepped back from this position some while ago. Such a situation raises fundamental issues of an administrative nature which might be difficult to overcome and could give rise to liabilities of a very awkward nature, as well as to conflicts of purpose.

Some cases in default can be referred to the registrar of the Property Chamber Land Registration First-tier Tribunal. I am told that once all the material is lodged with the First-tier Tribunal it should be dealt with inside 70 weeks. Certainly this can be quicker than going to the county court but it might still take two years from beginning to end, which is quite a long time.

It is also claimed that mediation might resolve such issues. Indeed, this could be so if there were, as a generality, equal strength of position and both parties considered it in their interests to settle the matter informally. Sadly, such convergence of factors is rare and, without that, the basic ingredients for mediation success are lacking. There is no provision for enforcing a mediation settlement. Furthermore, by the time the parties get to mediation, the costs in relation to the value of the land under consideration are often so disproportionate that, as I said earlier, settlement is more often than not quite impossible.

My own professional body, the RICS, offers a dispute resolution service, which again can usefully lead to agreement—but it, too, relies on the parties’ voluntary participation and wish to conclude the matter, which is not always a given. There are of course longer-term measures but, I am afraid, no short-term fixes. For instance, if better boundary descriptions formed part of the land registration process, it could be very useful, but on present transaction volumes it would take more than a lifetime to achieve.

A move to a cadastral system, which I referred to earlier, is, I am satisfied, not helpful in this case. It is not that it cannot be so but, in the context of a mature land registration system, retrofitting it would be expensive and highly risky—not to mention that it would not prevent disputes arising and might even flush out a whole raft of new ones.

To finalise, the point is that for all the talking, and for all the consultation and deliberation, not least by the Ministry of Justice—perhaps when the Minister comes to reply, he will be prepared to say whether any further progress has been made—nobody else, the legal profession in particular and despite its opposition, has come up with any other workable solution. In the light of all that, I feel compelled to seek an end to what I see as a policy of masterly inactivity—or, perhaps more colloquially, of kicking the can down the road—and I therefore commend this Bill to the House. I beg to move.

--- Later in debate ---

[The Earl of Lytton]

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.