Property Boundaries (Resolution of Disputes) Bill [HL]

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, it seems to me that the essential matter in a boundary dispute is: where is the boundary? That is not a legal question at first sight, but a question of what the situation on the ground is. Legal questions may arise in relation to the use that has been made of the land in the past and so on, but the fundamental question is where the boundary should be today. As far as I am concerned, the sort of qualification you need to decide that is to have some expertise in examining situations on the ground to see where the natural boundary is. In many cases, although not in all, it will be fairly obvious on examination of the ground where the boundary should be and is intended to be. It is often possible to relate it to the title, although the title in expression may be somewhat ambiguous. It therefore seems to me that the proposals in the Bill provide an excellent system for resolving disputes that can linger with great bitterness, and often for very little. It is usually not a huge difference in land but quite small differences can give rise to bitterness when people get very worked up about where their boundary is. A system that makes examination of the ground fundamental to solving the dispute is a good one.

I agree, of course, that questions of ownership are questions of law. However, the question of where the ownership is is not a question of law; it is a question of fact and of looking at what the situation is on the ground. It is usually where there is ambiguity in the title—of course the lawyers are extremely good at examining titles—that the dispute arises. I do not know of any way in which that can be resolved except by examining the situation on the ground to see where the natural boundary is, in the light of the expressions used in the title. Therefore, this Bill is a very worthwhile move to simplify the way in which these disputes are resolved.

I agree that, in this sort of situation, there is no pre-contract agreement, so there is nothing to bring this on unless there is some statutory emphasis behind it. Accordingly, as far as I am concerned, this seems a reasonable way of solving what is a not uncommon type of dispute. I do not feel inclined to say that the courts must have jurisdiction at every stage. Obviously, if a question of law arises out of the view that the surveyor or surveyors take of where the boundary is on the ground, then it may be right that that is settled by the courts. However, on the whole, most disputes will be resolved by the examination on the ground, with no residual question of law remaining. I therefore support the Bill and hope that the Government will see it as a way forward. If there are difficulties, perhaps they can be resolved, but I think that the Bill is a considerable improvement on the last one.