Property Boundaries (Resolution of Disputes) Bill [HL]

Earl of Kinnoull Excerpts

Friday 11th September 2015 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I congratulate the noble Earl on bringing the Bill to the House, the second in his suite of “neighbourly matters” legislation—the first being, as he said, the Party Wall etc. Act 1996, of which more in a second. I welcome the very clear reasoning that he has just set out.

Boundary disputes of course happen naturally and always will. Those who sit in tutorials learning Roman law at Oxbridge have to learn about them from several thousand years ago, and Citizens Advice has advised that last year alone it was giving advice on 3,700 such disputes. I dare say that there were many more.

The situation in England and Wales at the moment means that such disputes are extremely expensive to sort out and very slow. They give rise to blight on an affected property, and that blight is expressed both in the saleability of the property and in the ability to raise mortgage finance on it. They give rise to problems between what one might term big party property owners and small party property owners because the big party will be tempted by use of wallet to be, frankly, unfair to the small party, and abuses can and do happen. They also clog up the courts, about which I shall say more in a second.

I feel that the Bill is in line with a general policy in life of trying to provide better access to justice for people. It would speed things up and produce much lower costs. It would also blunt the abuse weapon, to which I have just referred, between larger and smaller parties.

I have much direct experience of the Party Wall etc. Act 1996, both as a private individual and corporately. At least two of the things that I have been involved in have become very contentious indeed. I feel that, after nearly two decades of it being in service, the one thing that one can say is that the mechanism provided under that Act really works well.

One party wall surveyor, who I think is the chairman of the Pyramus & Thisbe Club and who has been in practice for more than 25 years, told me proudly that he has never had to go to a third surveyor in his line of work. There is a very clear reason for that, which is that to be a successful surveyor you have to have as a core skill relationship management; otherwise, you simply will not get any clients. That ability to have relationship management is, I am sure, at the core of being able to bring together parties whose feelings often run very high and at the core of being able to get a deal done.

The noble Earl mentioned previous criticisms of efforts to bring forward legislation of this kind. There is one more criticism, which is that surveyors lack legal expertise. I think that is a weak point and I shall make three counterpoints, although there are more. The first is that, very often in these disputes, the issues are not legal but factual. A surveyor with gum-boots on is probably much better suited to facilitating a resolution in a dispute than someone sitting in a lawyer’s office.

The second point that I make in rebuttal is that surveyors can and do employ a lawyer if a legal point comes up. Indeed, in one of these very contentious cases that came up, precisely that happened. Both surveyors immediately wanted to instruct a lawyer on a very arcane point. Legal advice was taken and prepared, and the dispute was eventually resolved.

The third point concerns the judiciary. We have had various quotations and in fact the law reports are littered with interesting quotations from the judiciary about how little they enjoy boundary disputes. I have a quotation from Lord Justice Mummery in Bradford v James in 2008:

“There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills”.

He went on:

“Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both”.

I think that the judiciary would certainly want to try to export a lot of boundary disputes to another method of resolution.

In summary, I agree very much with the noble Earl that the current arrangements produce disputes that go on for too long, are too expensive, are open to abuse—there are instances of abuse—and clog up the courts system. I have three very short questions for the Minister. First, does he agree that it is preferable to do something about this issue now than to let the status quo be? Secondly, does he agree that the Party Wall etc. Act mechanism has been a great success over its nearly two decades? Thirdly and accordingly, does he agree that such a mechanism could successfully be applied to other boundary disputes to the benefit of all?