Protection of Freedoms Bill

Lord Soley Excerpts

Thursday 12th January 2012 Grand Committee

Moved by

[Lord Soley]

152: After Clause 102, insert the following new Clause—
“Right to information regarding the ownership of land
After section 1 of the Freedom of Information Act 2000 (general right of access to information) insert—“1A Right to information regarding the ownership of land
(1) Any person making a request for information to a public authority about the ownership of land is entitled to be informed whether—
(a) the land is owned, and(b) there has been a registered owner in the last 100 years.(2) The relevant public authority shall have a duty to provide such information upon request.
(3) Where—
(a) such a request is made in relation to a dispute over the ownership of the land, and(b) the information is not held by the public authority,the public authority shall also have a duty to search for the information requested.””

[Lord Soley]

After that last debate and listening to my noble friend who is as ever persuasive, knowledgeable and everything else, I am surprised that the Minister did not invite him into the department and offer to let him run it while he took a holiday. My noble friend was so convincing I was fully signed up for it. Let me try my best to get some assistance on this one, too.

Amendment 152 addresses a very complex and problematic area around the ownership of land and what I shall call unadopted roads. There are many different names for unadopted roads—unowned, private, and so on—and they are all grouped together. It is not a small problem; there are some 40,000 in the United Kingdom—about 4,000 miles of such unadopted road—so we are not talking about a small problem. It involves rural and urban areas. I want to encourage the beginning of a process and the Minister will be relieved to know that I am not asking her to pick this up and develop it as a full policy because it is a complex area. I am asking her to take on board the complexity of the issue. I have already made some approaches to the Select Committees of the two Houses to see which would be the most appropriate to take the matter forward in recognition that the problem affects a lot of people and causes real difficulty, not just for individuals but for communities living along those unadopted roads. I shall attempt to spell that out a bit more.

First, I declare an interest: I live on such an unadopted road and have seen some of the problems at first hand. Only the other year I was involved in giving advice to people who lived in an unadopted road in the county of Surrey where one resident was getting a company to clamp vehicles that were left in the road and the other residents were being charged large sums of money to have them unclamped. I know that Clause 54 of this Bill makes that unlawful and I am pleased about that. I dealt with other cases as an MP and by talking to other Members of this House and the House of Commons, I am aware that this situation has caused a lot of problems.

Let me say what those problems are and how they have emerged. This is not a scientific appraisal but it seems to me that a lot of the problems emerged in the 19th century when towns were expanding and fields were being sold off in plots for housing, leaving between them areas that ended up serving as roads or tracks. They became the unadopted roads. The Land Registry in an exchange of letters said that there is no such thing as unowned land. It said that,

“the fact that the ownership of land is not registered does not mean that the land is ownerless. In fact, all land will be owned by someone, even if that ownership cannot be readily identified”.

I have my doubts about that because it seems to me—I am not a lawyer—that if somebody who owned that field originally before it was sold off in parcels dies intestate, I am not sure that there can be any owner if that person had no known relatives. To say there is no owner is a vague and difficult concept. It is a curious situation that will have implications for people who live along that road, which is what I want to discuss in a moment.

It is also true to say that one of the main problems that ought to be addressed with some degree of concern is the problem of maintenance. These roads are very difficult for people to maintain if their house fronts on to the road. There are rules about what you can do in order to repair, and if the community is functioning well it will often group together and work out a solution. One of the things that troubles me is that it is not clear what the rights are. I draw attention to a good document on unadopted roads produced by the House of Commons Library in October 2010, which makes the point rather well. It states:

“Even if there is no information about the owner, the frontagers can take over the management of the road and will be protected by law from all but the true owner”.

The problem is: how do you know who the true owner is or if there is one? At the moment, you are protected if there is no known owner, but only up to the point when an owner suddenly materialises and you have a problem. You have a problem that action may possibly be taken against you if you do something on that road or if you repair it and then the owner appears and decides to charge for that. There are real problems about this.

When I discussed this situation with lawyers, the best advice they could give, which was very good coming from lawyers, was to try to avoid going to law on this because it is incredibly expensive and the law is not clear. My main message to the Minister is that we need to clarify this. What I am asking for on the information side is that the Land Registry tells everybody that they can come and inspect its registers, for a certain fee, and see who owns what land. The Land Registry will then say that it cannot be sure about the boundaries. The land may stop at the side of the road or somewhere else, and there is no clarity about where the boundary is. If you then ask who owns the road, the Land Registry will say that it does not know, but there is an owner somewhere. That is what I rather doubt. There are very real questions for the Land Registry about how it prepares and investigates this ownership.

One of the reasons why I put down in this amendment a duty to say whether land has been registered with an owner in the past 100 years is that it would enable people who were thinking of taking over the maintenance of a road to ask whether anybody had owned the land in the past 100 years. I have chosen 100 years as a fairly arbitrary figure, but it is good enough to give people some confidence that they could proceed. If it has not been owned for 100 years, it might be worth the community trying to take over the maintenance of the road either through the local authority or directly. Maintenance is not a minor issue. Many of these roads are not lit and are often, but not always, rights of way, so people are passing up and down them. If the weather is seriously inclement—last winter, for example—the road will be heavily pitted and iced over, and people fall and have quite serious injuries. The question is: how can we address this issue in a way that makes it safer for people to use these roads? It is a little easier when the road is not also a right of way, but it is still a problem for the people who live along it.

There is also the sad problem of ownership disputes. I dealt with situations where people parked cars, put obstacles in the road, grew hedges into the road and did a host of other things. Occasionally, the police are called in, but they cannot possibly solve what is basically a neighbourhood dispute. It is largely about the lack of clarity in the law. Increasingly, I came to the view when dealing with other cases and going by my own experience that Parliament has a duty to address this complex issue. I will be delighted if the Minister offers to take this away and come back with it in a way that enables people to get more information than is available at the moment, which is not that helpful. We need to acknowledge that this spills over into legal areas, so the Ministry of Justice would be involved. I am not suggesting that this Bill is necessarily the right way of doing it, but I am saying that the information combined with some sort of legal structure is necessary. The department, perhaps in conjunction with other departments, could work out something. It may even need an individual Bill drawn up between the departments or, initially, one of the Select Committees to take it on board and have a detailed look at it. If I can get support from the Minister on that approach we could begin a process that might help us solve this problem.

--- Later in debate ---

[Baroness Hamwee]

The advice “Don’t go to law” might be extended to “Be very careful about buying a house on an unadopted road”. The former private enterprise, which the noble Lord, Lord Soley, described, of clamping one’s neighbours’ vehicles is quite extreme.

Perhaps I may ask a few questions. I do not suggest that the problems the noble Lord has described are not important but, on the amendment, first, is he suggesting that this extends to any public authority beyond the Land Registry? I suppose that local authorities holding a local land charges register might be relevant, but this is all public authorities. Secondly, did the letter from the Land Registry refer to land having gone to the Crown in the situation of intestacy, and thirdly, is there a concern about more than the adoption of roads? The amendment is more extensive than that, as I understand the thrust of it.

[Lord Soley]

Perhaps I should answer those points briefly. The reason for including other public departments is because there can overlap. For example, some of these roads are part-owned by a local authority, so you cannot rule out an interest by another public authority. The noble Baroness’s second point about the Crown is very important. I had thought of adding to it but I had already said enough, in a sense. It is said—although I have never known this to be tested—that if you can prove there is not an owner you can approach the Crown to buy the road. It is interesting because that is in direct conflict with what the Land Registry is saying, which is that all roads are owned. My understanding, from talking to one of the lawyers involved in a case, I think, was that if you proved it is not owned—presumably you would have to do that by checking back through wills and so on—you can then approach the Official Solicitor to buy the land. The duty is not on you to prove that it is unowned—I am not sure you can do that in this context. I think that is an important point.

I am not quite clear what the noble Baroness meant by the adoption issue. There is a whole range of names for these roads: private roads, unowned roads, adopted roads. Is that what she means—

[Baroness Hamwee]

Further to the issue about roads and the general situation described, the amendment could apply to all sorts of situations, I suggest.

[Lord Soley]

The noble Baroness may be right although I asked for it to be drawn up with a specific focus on this. If it does I am not sure that it is the end of the world but the intention is basically on unadopted roads.

[Baroness Stowell of Beeston]

My Lords, I want first to congratulate the noble Lord, Lord Soley, on his staying power this afternoon. Beyond myself and my noble friend he is one of the few Members who has been with us throughout the proceedings and it has been very nice to see him here.

On his amendment, I recognise the difficulties that can be encountered when attempting to establish land ownership and recognise the noble Lord’s intentions in seeking to address this point. The way in which he has described the problems is very clear and compelling. However, this amendment would go well beyond the intentions of the Freedom of Information Act. It is not intended to require public authorities to carry out detailed, time-consuming and potentially disproportionately expensive research for information they do not hold.

However, where a request for information made under Section 16 of the Freedom of Information Act requires a public authority to provide a reasonable degree of advice and assistance to applicants this would, where information is not held, include advice about how they might obtain answers to their questions from other sources themselves. In terms of process, this strikes the right sort of balance between the need to use increasingly limited resources sensibly and assisting the public where possible. However, as the noble Lord has identified, the problem he has expressed today goes way beyond this and is currently—it sounds simple from the way he has described it—almost impossible to solve through any route available to anybody at this time.

I was interested in his suggestion of pursuing this problem through a Select Committee route and exploring it because it sounds as if it is a significant issue that requires proper consideration in isolation and separate from this legislation. In respect of the Land Registry, the proposal in his amendment to require an authority to go further than provide the information it has via the FOI Act which receives a report would not just catch the Land Registry, but any other body with an interest in land ownership. I am not sure that was the noble Lord’s intention. I feel that he has raised an important issue. It is certainly useful for us to be aware of it and certainly in the presence of officials from the Ministry of Justice who are considering FOI. I think it goes wider than that and I would be more inclined to support the noble Lord in his effort to pursue this through a Select Committee than to do it through this Bill. On that basis, I invite him to withdraw his amendment.

[Lord Soley]

My Lords, I am very grateful to the Minister for that reply, for the constructive way in which she has addressed the issue and for her interest—I think that was the word that she used—in my proposal that the matter should go to a Select Committee. I can assure her that the report of this Committee’s proceedings will be brought to the attention both of the clerks to those committees—I have not quite worked out which would be the best committee and, actually, it might be best dealt with by a Joint Committee—and of the chairs of those committees, one of whom I have already spoken to.

I will also draw the issue to the attention of the Land Registry, which I think needs to think about what sort of answers we might need on this. I accept the Minister’s point that the issue goes much wider and I recognise that only a small part of it could come within the scope of the Bill. What I am struggling with is finding a way in which Parliament can address the issue to resolve the problems that confront people and that are, in many cases, very immediate for them. As I said, I could have referred to a number of cases that have been brought to my attention, and I am sure that there are many other such cases around the country.

I am grateful for the Minister’s comments and happily beg leave to withdraw the amendment.

Amendment 152 withdrawn.