Access to Neighbouring Land Bill [H.L.] (Hansard, 13 February 1992)

HL Deb 13 February 1992 vol 535 cc869-95 869

§ 5.25 p.m.

§ Lord Murton of Lindisfarne
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Murton of Lindisfarne.)
On Question, Motion agreed to.
House in Committee accordingly.
870 [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Aylestone) in the Chair.]
Clause 1 [Access orders]:

§ Lord Murton of Lindisfarne moved Amendment No. 1: Page 1, line 12, at end insert ("against that other person").

§ The noble Lord said: This amendment makes no change of substance to Clause 1(1) of the Bill. However, I put forward the amendment in order to meet a point raised at Second Reading by my noble friend Lord Coleraine who suggested that there is some lack of clarity in the Bill as to who is to be the respondent to the application. The amendment seeks to bring out in Clause 1(1) even more clearly than it does at present that the respondent is the person against whom the application for an access order is made. I beg to move.

§ The Lord Chancellor
On behalf of the Government I entirely support this amendment.
On Question, amendment agreed to.

§ Lord Coleraine moved Amendment No. 2: Page 1, line 12, at end insert: ("( ) An application for an access order made for the purpose of carrying out works to the dominant land may also relate to the carrying out of works to the servient land.").

§ The noble Lord said: In moving this amendment I speak also to Amendments Nos. 7, 8, 9 and 10 which are consequential to it. I wish to make it clear that I am not speaking to Amendment No. 6 which is a separate and small drafting point. Amendment No. 2 seeks to provide for what seems to me to be an important and practical need for access which does not appear to be covered by the Bill and which, as far as I am aware, was a point which the Law Commission did not have drawn to its attention and did not address when it prepared its report and the original draft Bill.

§ The amendment is intended to enable the dominant owner of land which is infected by dry rot to have access to his neighbour's property, the servient land, which is also affected by dry rot. In this case it is not just to carry out repair works to the dominant land but also to carry out remedial works within the neighbour's property. If the court found that this work on the servient land was reasonably necessary for the preservation of the dominant land, the court could make the order. I need not remind the Committee that there is no point in remedying part only of an outbreak of dry rot.

§ It may be asked why this provision should be necessary. Surely, no neighbour would leave dry rot untreated in his own property. I believe that that is possibly to take an unduly rosy view of the way people behave. I recently had experience of a block of flats where four lessees were buying out their landlord's freehold interest for £1. They did so because the landlord, a company resident overseas, had allowed dry rot to spread within the building. The reversion which it owned (it owned nothing else) was valueless so there was no point in trying to sue the landlord. Unfortunately, the top floor flat had been sublet for a year by the long lessee of that flat who was sharing in the buy-out. Dry rot affected that flat also. The 871 sub-tenancy did not reserve a right for the long-lessee, or the freeholder, to come back into the flat to repair dry rot or to carry out any other repairs. The tenant was not inconvenienced by the dry rot which was behind the wall and he saw no need to be obliging.

§ I understand that by the time the matter was finally resolved the cost of eliminating the dry rot and treating the structure had risen from around £10,000 to nearer £50,000. That is the kind of case which could be aided if an amendment along these lines were passed. The new freeholders might have been able to obtain a direct access order against the sub-tenant. I beg to move.

§ 5.30 p.m.

§ Lord Murton of Lindisfarne
I admire the way in which my noble friend Lord Coleraine has put the case so very well with these amendments. While everyone agrees that the problem to which he has drawn attention—namely the spread of dry rot which affects neighbours' properties—is serious for the unfortunate persons whose properties are touched by it, I do not believe that the answer is to be found in these amendments, sadly though I say that.
It is fundamental to the scheme recommended by the Law Commission and now provided for in the Bill that, in the words of the Long Title, it enables, persons who desire to carry out works to any land which are reasonably necessary for the preservation of that land to obtain access to neighbouring land". The scope of the Bill has been deliberately confined in that way. My noble friend wishes to extend the Bill, in Clause 1, to enable the applicant to obtain access to neighbouring land to carry out works to the neighbouring land itself, as well as to his own land, as he has pointed out in recent correspondence. But I am afraid that that does not help in this respect.
Although, as I have said, the spread of dry rot from one property to another—for example, in the case of adjoining properties—can be a serious problem, there are remedies to hand under the existing law. The tort of nuisance provides a remedy which enables persons to bring an action against a neighbour who omits to take steps to stop the spread of the fungus. I suggest that it is no different from the situation of tree roots which encroach under buildings and may threaten to cause, or actually cause, damage. Unlike the situations for which the Bill is intended to cater, my noble friend has not, to my mind, highlighted a gap in the existing law which needs to be filled.
If an applicant were to obtain an access order to enable him to enter the respondent neighbour's property for the purpose of treating the dry rot on the applicant's property, it is to be expected that many reasonable respondents would, in their own interests, agree to carry out the necessary work to deal with the problem on their own property. A respondent who refused to do so could be threatened with legal action.
Although my noble friend Lord Coleraine has moved a number of amendments to deal with the consequences of the proposed extension of the Bill in Clause 1, the change he is proposing would affect 872 other parts of the Bill; for example, Clause 3(2). For all those reasons I hope that my noble friend will not press his amendment.

§ Baroness Elles
I rise to support Amendment No. 2. I find it difficult to accept the reasoning of my noble friend Lord Murton. I must declare an interest in that I have a property to which dry rot had spread from the house next door. I had the dry rot in my property repaired, which affected four other tenants who had bought flats within the property. That was in 1988. The landlords of the house next door have so far refused to repair the dry rot in that adjacent property. Consequently, two of the people who have purchased flats in my block are now unable to sell them because they cannot get a guarantee of no more dry rot in the neighbouring property. They have been put to grave disadvantage in that they cannot let their flats and they cannot sell them.
I do not think that the remedy which the noble Lord, Lord Murton, has indicated is, in fact, available to the owners of those flats. I can see no other way of at least being able to threaten a neighbour who has dry rot and who has taken no action for four years, thereby depriving his neighbour of the right to sell his property, unless something of this kind goes into the Bill.
I very much welcome the amendment in order to draw attention to the problem. It may be that, at the end of the day, inserting these words in the clause is not the right way of dealing with the matter; but the fact remains that this very serious situation is occurring throughout the whole of London where, as we know, there are many properties with dry rot and where landlords refuse to repair properties because they do not wish to spend money on this kind of work. That affects the next door properties which, in my case, is the dominant property. It is putting a great hardship on the owners of flats or houses which are the dominant properties.
In principle, therefore, I totally support my noble friend Lord Coleraine but perhaps we shall have a satisfactory answer from my noble and learned friend the Lord Chancellor as to how one can take action against people who refuse to spend money to make necessary repairs.

§ Lord Wilberforce
I should like to support the amendment, at least to some extent. There is clearly a practical problem here. It may be a larger problem than we had thought, particularly having heard what the noble Baroness said. It seems to be one which requires to be addressed. At the same time it is quite clear, as was pointed out by the noble Lord, Lord Murton, that insertion of the amendment would rather dislocate the framework of the Bill as a whole and involve consequences.
I venture to draw attention to Clause 1(2) (a) which would apply to this situation. The order would only be made if, the works are reasonably necessary for the preservation of the whole or any part of the dominant land". An access order could not be obtained just to clear up dry rot on a neighbour's land. The court would have to be satisfied that to do so is necessary for the 873 preservation of the dominant land. That is quite a substantial safeguard and limitation of the risk to the respondent.
There is always the safeguard of the court. One would have to go to court and the court would look at it to see what is reasonable, in the interests of both parties. If it is not reasonable and the servient owner makes an objection, then obviously an order would not be made. With respect I suggest that we are fairly near the point where something like the amendment of the noble Lord could be accepted. There are safeguards already in Clause 1(2)(a) and in the general discretion of the court. It may be that other safeguards are necessary as the noble Lord, Lord Murton, said. However, I hope that the amendment will not be rejected out of hand. There certainly seems to be something in it.

§ Lord Murton of Lindisfarne
I reply to the noble and learned Lord with some trepidation. Surely the existing law of nuisance provides a remedy which enables persons to bring an action against a neighbour who omits to take steps to arrest decay?

§ Lord Wilberforce
That requires an action of nuisance, in most cases. I quite see the point, but it would require a strong case to bring a common law action of nuisance.

§ Lord Mishcon
I was hoping, with great humility, to clarify the legal situation, but sitting opposite the noble and learned Lord the Lord Chancellor, as I do, it will be for him to clarify and I am sure that the Committee will accept his view of the law in preference to mine. However, if we are really to consider, as the noble and learned Lord just said, that an applicant would in any event have to go to court in these circumstances in order to invoke a legal right, it is extremely relevant to see whether the same course of action is not already available.
I can well see that if we were imposing a remedy which did not require an application to the court that would be very sensible, though quite obviously completely impracticable because—to use the example given—we are dealing with someone who apparently has refused to remove his dry rot the danger of which is coming onto adjoining premises.
When I was a student I remember so well having hammered into my mind the principle of Rylands and Fletcher which was the moving of a dangerous substance onto a property which was not permitted according to law. Indeed, an injunction and damages could be obtained.
I rise to speak only because I feel there is a remedy in law in this situation. Why in those circumstances duplicate matters by putting into the Bill a provision which, as the noble and learned Lord willingly admits, means going to the court—so we have not cut out the cost and trouble of that —when in my view the court could make an appropriate order, either by way of an injunction in a suitable case restraining the spread of it, or indeed by way of some action for a nuisance, and deal with the matter in that way?

§ The Lord Chancellor
This Bill was constructed by the Law Commission in order to deal with the 874 problem of requiring access to neighbouring land in order to perform work for the preservation of the subject land. The whole Bill has been constructed with that in mind. It is, as the noble Lord, Lord Mishcon, said on earlier occasions, a quite important change.
It may be undesirable to attempt to make the Bill carry too much on its shoulders. I accept that my noble friend Lady Elles had a problem and that my noble friend Lord Coleraine has a related and perhaps even more difficult problem in that the owner of the premises may have had difficulty in getting at somebody who had resources sufficient to provide for this difficulty. It is highly likely that in many of these circumstances there will be a remedy at common law in an action for nuisance in respect of allowing the fungus of dry rot to spread. Of course not only dry rot would be covered by the amendment; there might be other types of problem as well.
I think that some more elaborate machinery may be required. After all, if one got in under this system one would be repairing one's neighbour's land and possibly removing quite significant amounts of dry rot. Who would have the benefit of that? There is nothing in the Bill to allow the person who does the work, having obtained access under the Bill, to obtain compensation for the benefit that he or she has conferred on the owner of the other land in respect of which the work was done. The whole object of the Bill is for preservation of the land of the first owner, the applicant, under the Bill. Therefore, while I accept that there are problems in this area, I would caution against trying to use this Bill to carry too much weight in case, having done that, we may damage it as a vehicle for dealing with the particular problem with which it was designed to deal.
That is an urgent problem which a number of your Lordships have recognised. I feel therefore that the best may be the enemy of the good in this situation. We may make it too elaborate. I certainly do not claim to have thought out all the possible implications of my noble friend's amendment. Certainly, as he said, the Law Commission did not have its attention directed to this point. We are dealing with a quite difficult area of the law. I am happy to direct the Law Commission's attention to this problem but I think it may be unwise to use this Bill as the means of solving it.

§ 5.45 p.m.

§ Lord Coleraine
I am grateful for the support given to the amendments by my noble friend Lady Elles and the noble and learned Lord, Lord Wilberforce. I appreciate that my noble and learned friend the Lord Chancellor would feel it undesirable at this rather late stage to make the Bill carry too much on its shoulders. It may well be that these amendments would seek to do that.
The noble Lord, Lord Mishcon, referred to the case of Rylands and Fletcher. Although my experience of law school perhaps took place after his, nevertheless I would not suggest that my memory of the law is any better or worse than his. It is my recollection of Rylands and Fletcher that it is related to cases where people accumulated things on their land—water in a reservoir or something of that kind. I do not 875 necessarily think that it would apply to dry rot infesting land. I find it difficult to see how the court could grant an injunction restraining the spread of dry rot under the rule in Rylands and Fletcher or any other rule, although I should like to think further about the point that an injunction might be made to compel the servient owner to remedy the rot. So far as concerns the action for nuisance, that would be bolting the stable door long after the horse had fled, although it might be that the injunction combined with the action for nuisance could do it.
I am grateful to my noble and learned friend for saying that he would refer my point to the Law Commission. There is a problem here and some such remedy as the Bill confers may well not be a superfluous second remedy but a useful adjunct to whatever existing remedies there may be. I should like to think about this further. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Mishcon moved Amendment No. 3: Page 1, line 13, leave out ("shall") and insert ("may").

§ The noble Lord said: I hope very much that for the ease of the sensible discussion of my amendment the Committee will permit me to speak also about Amendments Nos. 4 and 5. I was troubled at Second Reading by the fact that the Bill imposes upon the court a mandatory duty. It is contained in Clause 1(2), the words being: On an application under this section, the court shall make an access order". No discretion is left to the court and it is mandatory provided certain conditions are applicable to the particular case. Together with your Lordships I looked at Second Reading at Clause 1(3), which states that the court should not make an access order, in any case"— this was the sole limitation— where it is satisfied that, were it to make such an order, the respondent or any other person"— I read these words slowly on purpose— would suffer interference with, or disturbance of, his use or enjoyment of the servient land".

§ I emphasised those words at Second Reading because there was nothing there—and I instanced this case—about hardship to a person let alone the question of anything that might happen to land. I ventured to bring before your Lordships the case of someone who in the middle of a nervous breakdown suddenly found himself or herself before the court with all the ingredients necessary for the applicant to prove his case and with the judge bound by a mandatory order, unable presumably to do anything other than possibly think about compensation, conditions or whatever it may be.

§ The noble Lord, Lord Murton, has been kind enough to take account of what I said at Second Reading and as a result I notice that there is an amendment which now adds to Clause 1(3) the further provision that an order should not be made if, the respondent, or any other person (whether of full age or capacity or not) in occupation of the whole or any part of the servient land, would suffer hardship".

876

§ I cannot ask for more. I tabled the amendment only to insert the word "may" instead of "shall" in order to provide for such a contingency. In the hope that Members of the Committee will approve, as I certainly do, of Amendments Nos. 4 and 5, I very willingly beg leave to withdraw my amendment.

§ Lord Wilberforce
I had hoped that we would be able to discuss the two amendments together before the noble Lord made up his mind. He indicated a willingness in a certain hypothesis. I very much hope that the Committee will still give consideration to the noble Lord's amendment. I do not like imposing mandatory duties on courts. I do not like the conception of a sort of "slot machine" in which one inserts conditions—namely paragraphs (a) and (b)— and if they both go in then it makes an order, but if they do not both go in then it does not. It seems to me to be derogatory and unsuitable to a county court to say that an order must be made if (a) and (b) are satisfied.
I should have thought that the Bill would be in a much better spirit, if I may say so to the noble Lord, Lord Mishcon, if it had the word "may" included. One never knows if a county court judge may wish to adjourn the case to allow negotiations to take place to introduce modifications. A cast iron obligation to make an order straight away seems to be inappropriate. However, if the noble Lord still insists on withdrawing the amendment, I cannot object. Certainly, the point is largely met by Amendment No. 5. But even if Amendment No. 5 is accepted, I venture to suggest that the word "may", thus leaving a discretion, is better than the word "shall" which imposes an obligation.

§ The Deputy Chairman of Committees (Lord Aylestone)
I should point out to Members of the Committee that the Question has not yet been put in respect of Amendment No. 3. I very much regret that fact.

§ Lord Mishcon
With the leave of the Committee, perhaps I may now move my amendment. I hope that Members of the Committee will, with their usual kindness, forget what I said previously about the possibility of withdrawing it. I have been given much courage, as is usual with me, by the noble and learned Lord's support. It may be useful in the circumstances for the matter at least to be debated in the context put forward by the noble and learned Lord. On Second Reading I put the point that I thought it wrong to fetter the discretion of a judge. I did so in general terms. I beg to move.

§ The Lord Chancellor
Perhaps before my noble friend expresses his view on the amendment, it may be convenient if I were to say a word or two about it. One of the necessities is to do what one can to frame the Bill so as to, so far as is possible, avoid unnecessary litigation. One of the requirements for the avoidance of unnecessary litigation is that the rights that people have should be reasonably clearly defined.
The nature of the right involved here of access to neighbouring land is a new one. In drawing up the Bill, it is very clear that the Law Commission had as one of 877 its stated objectives that it should be possible for the parties or their advisers to know in advance whether or not an order would be made on a given set of facts, generally speaking.
The proposal would make it less clear to an applicant whether the court would be likely to make an access order and litigation would increase. From the point of view of my noble and learned friend Lord Wilberforce and that of the court, I perfectly understand that, once an application is put forward, there is a great deal to be said for having a discretion so that the court has a completely free hand. But, on the other hand, I believe that what the Law Commission had in mind was the desirability to try to state the circumstances in such a way that in at least the majority of cases people would be able to ascertain what was likely to happen without going to the court. Therefore, the party who did not wish to give access would know that, if necessary, the other party could go to the court. That would persuade him or her to grant the access.
We have before the Committee Amendments Nos. 4 and 5 which are intended to reflect the worry expressed by the noble Lord, Lord Mishcon, on Second Reading. I wonder whether this is the best way of meeting that anxiety; in other words, rather than giving the court the discretion, seeking to deal with the real point by giving the court a right to consider the question of hardship in particular circumstances. If the parties investigating the situation before a case is brought could see the possibility of hardship, they would know that there was a question of whether the order would be granted. There is no question of hardship. If the matter was straightforward, people would know that the court would in fact grant the order.
Therefore, to alter the present wording, thereby making the granting of an order a discretion, would I believe, at least to some extent, depart from the stated object of the Law Commission. In such a case, where we are trying to keep matters as simple as possible, I feel that it would be wise to try to define as clearly as this Chamber can in advance what the conditions would be for the grant of the order.

§ Lord Mishcon
I am deeply grateful to the noble and learned Lord, Lord Wilberforce, for allowing the matter to be discussed. For my part, I am still prepared, with the leave of the Committee, to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Murton of Lindisfarne moved Amendment No. 4: Page 1, line 21, after ("order") insert ("(a)").

§ The noble Lord said: I am grateful to the noble Lord, Lord Mishcon, for taking such an understanding view over the question of his amendment, and being prepared to consider that which seems to me to be his point.

§ The noble Lord said on Second Reading that the revised ground for refusal of an order does not take into account an individual's personal circumstances, as opposed to circumstances relating to his use or enjoyment of the land. He gave the example, as he 878 mentioned today, of a person who is ill and suffering from a nervous complaint where noise emanating from work may have had a deleterious effect on his health.

§ It is perhaps arguable whether the present subsection (3) in the Bill is wide enough to allow the court properly to refuse an access order in such a case. However, I think that the noble Lord made a very good case for putting the matter beyond doubt. For that reason, Amendments Nos. 4 and 5 respond to that anxiety by providing for an additional ground as an alternative to the existing grounds on which the courts should refuse to make an order; namely, that the respondent or any other person in occupation of the subservient land would suffer hardship to such a degree by reason of the entry that it would be unreasonable to make the order.

§ There is reference in Amendment No. 5 to "any other person" in occupation of the land. The subsection has been redrafted to cover, any other person … in occupation … (whether of full age or capacity or not) of the servient land. That is intended to allow the respondent to raise the issue of the hardship to cover other occupiers of his land such as the seriously ill child. The words in parenthesis are included because in other statutory contexts the courts would have taken the view that children under 18 are not in occupation. I hope that the amendment will meet with the agreement of the Committee. I beg to move.

§ Lord Newall
Perhaps I may make a small point. I did not wish to intervene, but it seems to me that if one inserts the word "a", surely one has to delete the word "the". Otherwise it does not make sense.

§ Lord Murton of Lindisfarne
I believe that the wording will become clear if one looks at the redrafting which will apply after acceptance of the amendment.

§ The Lord Chancellor
I support this line of dealing with the matter that the noble Lord, Lord Mishcon, raised earlier. I believe that the amendment moved by noble friend Lord Murton of Lindisfarne is a satisfactory way of dealing with the issue.
On Question, amendment agreed to.

§ 6 p.m.

§ Lord Murton of Lindisfarne moved Amendment No. 5: Page 1, line 23, after ("land") insert (", or (b) the respondent, or any other person (whether of full age or capacity or not) in occupation of the whole or any part of the servient land, would suffer hardship,").

§ The noble Lord said: The amendment is consequential upon the previous amendment. I beg to move.

§ Lord Wilberforce
I am not happy about the words, in occupation of the whole or any part". I understand the case of the sick or lunatic child on the land. Is it right to say that such a person is in occupation? They are technical words. I should have preferred something like "residing on" or "living on". If the noble and learned Lord is satisfied with the 879 words, it is not for me to object to them. But it seems to me that they are not accurate or apt for the many cases that may arise.

§ Lord Murton of Lindisfarne
I get into deep water at this point, and I make no apology for that. I am advised that under the present law the courts have to take the view that children under the age of 18 are not in occupation.
On Question, amendment agreed to.

§ Lord Coleraine moved Amendment No. 6: Page 2, line 18, leave out ("any land") and insert ("the dominant land").

§ The noble Lord said: This is the drafting amendment to which I referred earlier. It is a small point of drafting about which I should like clarification. The amendment takes out the word "any" at the end of Clause 1(4) and inserts the words "the dominant". When a statute, or any document intended to have legal effect, states a proposition and gives specific instances or examples of how it may have effect, it is often considered necessary to preface the list with words such as "provided that this shall be without prejudice to the generality of the foregoing". Those words are intended to avoid the possibility that whoever interprets the general proposition will feel it necessary to limit its application to cases similar to those given as specific examples.

§ Clause 1(4) contains what is, in effect, just such a without prejudice to the generality of the foregoing conclusion. Unfortunately, it misdescribes what is in fact the foregoing. The general proposition deals with what is necessary for the preservation of the dominant land. The words at the end of the subsection refer to "any land". That can only cause confusion. I hope that my noble friend will agree that the amendment is appropriate.

§ I should like to raise a point about that sub-section at this stage. I hope that my noble friend or my noble and learned friend can help me over it. In the earlier Bill on this subject Clause 1(4) provided a list of works which an access order might include. The list was clearly governed by Clause 1(2)(a), which requires the works to be reasonably necessary for the preservation of the land. Clause 1(4) of this Bill is in a much more extended and complicated form. I wonder why. It includes what seems to me to be the curious reference to "basic preservation works" and what is nearly a form of tautology to the effect that, if it is reasonably necessary to carry out basic preservation works to the dominant land, then those works are reasonably necessary for the preservation of the dominant land. The only meaning I can attach to that provision is that there are works of a certain character which are deemed to be for the protection of land whether they are in fact of value for the protection of land. That does not seem to be a helpful or satisfactory provision.

§ I cannot see why that form of drafting is to be preferred to the drafting of the earlier Bill. The Bill is complicated over what seems to be a simple matter. We regret, but must accept, that most of the 880 complications are necessary, but if the Bill, which will be read in every high street, can be made simpler, it should be. I beg to move.

§ Lord Murton of Lindisfarne
My noble friend raised a number of drafting points in relation to subsections (4) and (5). In all humility, and sensibly, it would probably be appropriate for me to leave the matter to my noble and learned friend the Lord Chancellor—if he agrees—to give us his views on those points.

§ The Lord Chancellor
In order to deal with the point of the amendment, it might be helpful to refer to Clause 1(2)(a) to gain a proper understanding of the purpose of subsection (4). Under subsection (2) the court will make an access order in any particular case only if it is satisfied: (a) that the works are reasonably necessary for the preservation of the whole or any part of the dominant land". The term "dominant land" is defined in Clause 1(1). It is the land to which works are desired to be carried out.
The purpose of subsection (4) is to provide a partial definition of works that are reasonably necessary for the preservation of the land; that is, the dominant land which is the subject of the application. Subsection (4) deems the works listed in paragraphs (a) to (d), which are called basic preservation works, to be works which are reasonably necessary for the preservation of the land in subsection (2) (a). The idea is to provide help. If the work is within the list, it is basic preservation work, but the list is deliberately not exhaustive because it is difficult to imagine all possible cases requiring preservation. There may be other works which may be reasonably necessary for the preservation of land over and above what we have thought of and listed. Hence, the last three lines in subsection (4). That is intended as a generality to describe what could be regarded as reasonably necessary for the preservation of land. It is not related to the particular land; it is in the nature of a definition, or a way of keeping open the definition, of what is meant by the word "preservation" in the context of land.
The land in question does not become dominant land until it is the subject of an application for an access order under Clause 1(1). The purpose of the last few words of the subsection, the subject of the amendment, is to keep open the meaning of the word "preservation" so that if some case arises which has not been thought of and included in paragraphs (a) to (d) it would not be excluded.
The meaning of the word "preservation" has been brought into the matter. The changes we have inserted into Clause 1 were intended to make clear, in response to discussions on the earlier Bill, the scope of the allowable works. However, in line with the Law Commission's recommendations the Bill deliberately leaves the term "preservation" undefined. It will be for the courts to interpret the term, but I believe that it is something which should be understood in its ordinary sense, having regard to the mischief with which the Bill seeks to deal. It would be difficult, standing here, to list every possible type of preservation. On the other hand, given a particular example, it might be easier to 881 say whether or not it amounted to preservation. That is the kind of flexibility which I believe it would be reasonable for the Bill to retain.

§ Lord Coleraine
I thank my noble and learned friend for that explanation which I look forward to reading in the Official Report and which I shall try to take in fully. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendments Nos. 7 and 8 not moved.]

§ Clause 1, as amended, agreed to.

§ Clause 2 [Terms and conditions of access orders]:

§ [Amendments Nos. 9 and 10 not moved.]

§ Lord Murton of Lindisfarne moved Amendment No. 11: Page 3, line 43, leave out ("just") and insert ("fair").

§ The noble Lord said: This amendment makes a small drafting change intended to meet the anxiety expressed by my noble friend Lord Coleraine on Second Reading that valuers would be happier to apply the term "fair and reasonable" than the term "just and reasonable" used in Clause 2(4). I am therefore happy to meet my noble friend's worry and make this minor alteration. I beg to move.

§ Lord Coleraine
I am grateful to my noble friend for moving the amendment, and I commend it to the Committee.

§ The Lord Chancellor
I too support the amendment. No doubt many people would be amused to observe that there is thought to be a difference between "justice" and "fairness". However, for consistency "fair and reasonable" seems to be the right term.
On Question, amendment agreed to.

§ Lord Murton of Lindisfarne moved Amendment No. 12: Page 3, line 45, leave out ("or to any person") and insert ("and any persons").

§ The noble Lord said: With the permission of the Committee, it may be helpful if I speak first to the main amendment, Amendment No. 14, and then return to Amendment No. 12.

§ The purpose of Amendments Nos. 12, 15 and 17 is either paving or consequential. The purpose of Amendment No. 14 is to provide an exhaustive definition of "financial advantage" for the purpose of Clause 2(4), the licence fee provision, in place of the existing inclusive definition of that term. Broadly speaking, the financial advantage is now to be taken to be either by (a) the increase in value, if any, of the dominant land, less the costs of the works with the benefit of the access order; or (b) in the case where it would be possible to carry out the works without the benefit of an order, the saving of the cost of the works; that is, the difference between the likely cost of the works without the benefit of the order and the cost with the benefit of the order. In cases where both (a) and (b) apply, the financial advantage will be taken to be the greater of the two sums.

§ In the debate on Second Reading, my noble friend Lord Coleraine was concerned that the existing Clause 2(5) might give rise to double counting which would 882 be over-generous to the respondents and unfair to the applicants. In the same debate, my noble and learned friend the Lord Chancellor doubted whether the courts would be amenable to allowing double counting because the formula is built in such a way that these are the circumstances to which the court has to have regard.

§ That remains the case, but there is a risk that the current formula may be read the wrong way. I believe that my noble and learned friend the Lord Chancellor accepts that this is so. I am grateful to both my noble friends; one for having raised the problem in the first place, and the other for having helped me to find the answer to it. I beg formally to move Amendment No. 12.

§ Lord Coleraine
I am grateful once again to my noble friend for bringing forward this group of amendments, which corrects the problem of double counting to which I referred on Second Reading. It also corrects what I noticed as a small error in the formulation which I made at Second Reading. It is right that there should not be double counting, and the amendments put the matter beyond doubt. I commend them to the Committee.

§ The Lord Chancellor
I am grateful for what my noble friend said. I too support the amendments. On Question, amendment agreed to.

§ 6.15 p.m.

§ Lord Mishcon moved Amendment No. 13: Page 4, leave out lines 3 to 5.

§ The noble Lord said: I regard this as an important amendment and one of principle. I can best introduce it by asking the Committee to look at Clause 2(4) (b) at the top of page 4 of the Bill. Your Lordships will see that the provisions in regard to subsection (4) (a) are not applicable in so far as any payment may be ordered where the works which the applicant desires to carry out by means of the entry are works to residential land.

§ On Second Reading, we tried to see whether we were effectively covering all the points that arise over the difficulty with which the Bill is meant to deal. All the examples that we examined were of homes. One recognises at once that there may be quite a few cases where industrial or shop premises are involved, but we were in the main thinking of a residence, belonging to a rather difficult neighbour, and where urgent works were required to the person's premises. The Bill would aid that person in getting essential work done if he had to go to his neighbour's property.

§ I ask the Committee to trace through what happens when there is an invasion of privacy, or inconvenience is caused to a person who is asked to make his land or property available for works to be carried out. Clause 2(2) on page 3 of the Bill states that: An access order may impose upon the applicant or the respondent such terms and conditions as appear to the court to be reasonably necessary for the purpose of avoiding or restricting—

(a) any loss, damage, or injury …
(b) any inconvenience or loss of privacy".

§ That means that the court can impose an order limiting the loss, damage or injury or the 883 inconvenience or loss of privacy where the court thinks it necessary and feels able to do so. There is here no question of compensation. It is a term or condition which will be imposed to avoid or restrict.

§ On the basis that the privacy of the individual in his home will be invaded or he will suffer inconvenience, he can look only under subsection (2) for the judge's discretion in imposing a term or condition which may restrict or limit that inconvenience or loss of privacy. Subsection (3) starts with the words, Without prejudice to the generality of subsection (2)". So there is no question of it being without prejudice to the generality of subsection (3), which further states: the terms and conditions which may be imposed under that subsection include provisions with respect to …, (f) the payment of compensation for any loss, damage or injury which will, or might, be caused to the respondent or any other person". The Committee will remember from subsection (2) that in the Bill there is a recognised difference between "loss, damage or injury" and, inconvenience or loss of privacy". The Bill takes the trouble to put in subsection (2) (a) "loss, damage or injury", then realising that it does not cover "inconvenience or loss" it then refers to "inconvenience or loss". To date we are in the position that although the judge can try to limit inconvenience or loss of privacy, subsection (3) (f) gives him no power to pay compensation for anything other than loss, damage or injury. I hope the Committee will bear in mind the little man in his home I have referred to. He will undoubtedly suffer quite a loss of privacy and quite a bit of inconvenience.

§ I shall now consider whether my little man is protected under subsection (4). Subsection (4) states: An access order may include provision requiring the applicant to pay the respondent such sum by way of consideration for the privilege of entering the servient land … including, in particular— (a) the likely financial advantage of the order". That provision does not cover the case I am discussing. I am discussing a house. I am not discussing industrial or business premises.

§ However, my eyes lit up when I noticed subsection (4) (b). I thought my little man was covered as a payment may be awarded for, the degree of inconvenience likely to be caused to the respondent or any other person by the entry". I considered that inconvenience would cover loss of privacy and that I should not worry further about it. However, the subsection contains momentous words which my amendment seeks to delete. Subsection (4) (b) states: but no payment shall be ordered under this subsection if and to the extent that the works which the applicant desires to carry out by means of the entry are works to residential land".

§ Therefore the owner or tenant of the house I have referred to in the context of my example may come before the court as a respondent. The judge decides it is right and proper to make an order. He says he will make terms and conditions which restrict the undoubted loss of privacy and inconvenience the respondent will sustain. The judge says he will restrict the loss of privacy and inconvenience as far as is possible. However, the judge will then say, "I am afraid this Bill does not enable me to pay you any 884 compensation. The House of Lords must have missed the point when they discussed this Bill in Committee, or must have intentionally omitted it. It only entitles me to pay compensation if you are suffering loss, damage or injury. The House of Lords could not have intended me to pay compensation for inconvenience or loss of privacy as that matter was dealt with in a previous subsection. When you might have received a payment by way of consideration under Clause 2(4), according to the debate in Hansard—presumably a judge should not read Hansard but for the purposes of my example I shall assume he has done so—"it was decided that a payment could not be awarded for inconvenience or loss of privacy in the case of residential homes. A payment can only be made in the case of industrial or business premises." I beg to move.

§ Lord Monson
I hope as a layman I may dare to intervene. In my opinion the amendment of the noble Lord, Lord Mishcon, is not only extremely reasonable but also wholly desirable. Perhaps in the case of the owner occupier or the tenant occupier of the dominant land the clause as it stands may be justified. However, I am not sure about that. But let us suppose the land in question were to comprise a large Victorian house which a property developer had acquired for the purpose of converting it into a large number of self-contained flats. In the process he hoped to make himself a great deal of money. There is nothing necessarily wrong with property developers making money, but if they are to do so I see no reason whatever why they should not pay compensation to the occupants of the servient land who are inconvenienced by that process.

§ Lord Coleraine
The noble Lord, Lord Mishcon, made a point that I have some sympathy with. The noble Lord did not take the line that has just been taken by the noble Lord, Lord Monson, that there is something wrong with making the distinction between residential land and other land. I do not propose to address that point at this stage. However, as he presents it, the amendment of the noble Lord, Lord Mishcon, seems to be a "baby with the bath water" amendment. It is a small point and a good one but in making the amendment he achieves much greater amendments to the Bill than he has spoken to. I should have thought if he had wanted to achieve the object he has described—I feel sympathy for that—he should have added the point as an additional paragraph to Clause 2(3) of the Bill.

§ Lord Mishcon
I hope the Committee will allow me to reply to points as they are made. I have taken the Committee stage—as I took Second Reading—as a stage where one advances a principle if one has one, but one does not labour the Committee, or indeed persecute oneself, by endeavouring to use the precise words that the draftsman may have used, and to much better effect.
My point is a simple one. I entirely agree that I could have presented the amendment in a different and, most likely, better way. My point is that, on the present wording of the Bill, a residential occupier is, in my judgment, excluded from having any payment or 885 compensation made to him by virtue of his suffering a loss of privacy or inconvenience. That is the point I really wish to make. I am indebted to the noble Lord for suggesting other ways in which I might have dealt with that point.

§ Lord Coleraine
I am glad the noble Lord is not attacking the general distinction between residential land and other land. I take the point he is making.

§ Lord Murton of Lindisfarne
The noble Lord, Lord Mishcon, is his usual entirely persuasive self. I accept that this is a difficult point and that arguments can be made both ways. For the exclusion one could say rural landowners are used to paying licence fees anyway and this is less common in residential cases. One could also argue that if this measure were included in the Bill it could lead to more litigation. It could also add to the cost of works in an ordinary case such as the case that occurred in the constituency of my honourable friend Mr. John Ward.
On the other hand, against exclusion is the fact that the distinction is a fairly arbitrary one. There could be disputes in borderline cases. Inconvenience to respondents is likely to be greater in residential cases. However, as I understand the position, compensation would be payable for loss. This is a difficult point. I personally think it would be better to leave the Bill as it is at present because I believe it is the custom in agricultural situations for payments of this kind to be made. However, it is much less common in the case of residential land.

§ The Lord Chancellor
The amendment as proposed by the noble Lord relates to the provision with regard to the licence fee. As my noble friend Lord Murton said, it is difficult to achieve a balance here. The Law Commission has proposed no licence fee at all. It is fairly clear that the Law Commission's primary concern is with the preservation of people's homes on residential land.
The debates and discussions we had on the earlier Bill suggested that the Bill could be sufficiently wide in its application to properly include situations where a licence fee should be payable. However, the restriction applies in the situation in which the works to be preserved are situated on residential land. Residential land is narrowly defined in subsection (6) as: a dwelling or part of a dwelling", and the surroundings of the dwelling.
Perhaps I may say a word about the point raised by the noble Lord, Lord Monson. The Bill is not directed at work which involves, for example, the subdivision of dwelling houses. That would not be covered. It relates to work for the preservation of dwellings. Therefore I do not think that the point that he made would be determinative of the matter.
As I understand it, the noble Lord, Lord Mishcon, would like to see inconvenience to the small person covered. It is my understanding that loss, damage or injury referred to in subsection (3) (f) would include compensation for loss of enjoyment of the property. That is the nature of the inconvenience which is in question. It is difficult to envisage compensation for inconvenience which does not amount to loss, damage or injury. Loss of use of the property or loss of 886 enjoyment of the property to any extent would be covered. The distinction made in the Bill as drafted relates to a situation in which it is proper to have a licence fee for entering property when activity over and above attending to one's house is involved. I suggest to the noble Lord that his point about inconvenience is covered in the only way in which it can be properly covered, namely, by compensation.
As my noble friend Lord Murton of Lindisfarne said, the balance as to whether or not one allows a licence fee is a difficult one. He gave his reason for concluding that the balance comes down in favour of allowing it generally but not in respect of residential land as narrowly defined.

§ 6.30 p.m.

§ Lord Monson
Before the noble and learned Lord sits down, perhaps I may say that now that he points it out I accept that Clause 1(4) does not embrace subdivision. However, does he agree that it would still be possible for a property developer to buy a derelict house, repair and renew it without subdividing it and sell it on at a considerable profit, although perhaps not for as much as if he were to subdivide it? That would be a commercial transaction. If the Bill remains unamended the property developer would still be able to make a great deal of money at the expense of the comfort and convenience of the occupant of the servient property.

§ The Lord Chancellor
It is always difficult to be certain about these matters. Subsection (6) reads: For the purposes of subsection (4) above, 'residential land' means so much of any land as consists of … a dwelling or part of a dwelling". That is the essential character of what is at issue. The intention is to protect the person who is trying simply to preserve his or her dwelling against having to pay a licence fee, which is in the nature of a commercial consideration, to enter the neighbour's land in order to preserve his or her dwelling. It would depend on the circumstances to some extent, but a developer who sought to do what the noble Lord, Lord Monson, suggested would have some difficulty in bringing himself under that particular clause.

§ Lord Mishcon
Perhaps I may answer the noble and learned Lord in this way. All of us are interested in the Bill emerging as a fair and just Bill. I use both those adjectives as though they were independent of each other. There is no desire to carry an amendment for the sake of carrying an amendment if another course would achieve the right result.
There is a difference of view between the noble and learned Lord and myself. That may be my fault. I do not ask for a licence fee for the owner of my little house. The owner of my little house will, very properly, want compensation for the fact that in certain circumstances—which we can all envisage—he will suffer great loss of privacy. It is summertime. He has a little garden. He has been looking forward the whole year to enjoying that garden with his family. Lo and behold, as a result of our passing this Bill, his little garden is invaded by builders who work during normal hours, bringing in a great deal of machinery, and that little garden which he has tended for so long 887 is not his. In my judgment, at present the Bill provides no power for a judge to give him compensation. I shall explain why.
Forget the licence fee. Forget the consideration in that subparagraph. Look at the Bill as it stands. Under Clause 2(2) all a judge can say is: "I am so sorry for you. I have heard, with pangs in my heart, how you have tended your little garden and how you were looking forward to the privacy of it, which has now been invaded. Under subsection (2) (a) I can do something about that by trying to limit the inconvenience of loss of privacy as much as I can. I can well see that Parliament had in mind that 'loss, damage or injury' did not cover inconvenience or loss of privacy because the draftsman took the trouble to put that as an alternative. The draftsman wrote 'any loss, damage or injury … or any inconvenience or loss of privacy', taking it for granted that, in regard to the court's power to restrict by terms and conditions, that inconvenience or loss of privacy was a different issue from loss, damage or injury". The court can award compensation to my poor chap who has lost the use of his garden and his privacy and has suffered such inconvenience only under subsection (3) (f). However, subsection (3) (f) does not repeat the words "inconvenience or loss of privacy". The only compensation that can be awarded is for any loss, damage or injury. The court will say that it cannot cover loss of privacy or inconvenience because the draftsman has provided for that being a different consideration from loss, damage or injury.
All of us are too old in our membership of this great House to want merely to have the joy of victory in moving an amendment. We might have done that in our early days but experience and age reduce that glory. All I want the noble and learned Lord and the noble Lord, Lord Murton of Lindisfarne, to do is to take my point, without agreeing it at Committee stage, and to consider whether there is substance in the point that the court must be given a clear power to grant an owner or tenant of a house compensation where the court considers that proper for any loss of privacy and inconvenience. I hope that that can be considered, and I am sure that my colleague, the noble Lord, Lord Coleraine, will help me with the wording which ought to be employed. Whatever the wording, there ought to be such a power for the court. At present it is either excluded or there could well be misunderstanding as to whether it is excluded. I want to see it included.

§ Lord Coleraine
Before my noble and learned friend responds—the words of the noble Lord, Lord Mishcon, continue to strike a chord in my heart—I should like to go back to what he said a moment ago that the matter of inconvenience or loss of privacy might be covered already by the words "loss, damage or injury". If that were so, for the sake of consistency and to provide a level playing field between the residential and non-residential cases, I wonder whether it would be appropriate to look again at the words in Clause 2(4) (b): the degree of inconvenience likely to be caused to the respondent or any other person by the entry". 888 I suggest that if what my noble and learned friend says is correct, it might be appropriate to leave the non-residential applicant to his rights also under Clause 2(3) (f) and possibly to strike out paragraph (b) of Clause 2(4).

§ The Lord Chancellor
Obviously my noble friend will wish to look at this point and I certainly shall do so. My understanding is that anything that is measurable in the sense of loss of enjoyment would be the subject of compensation under Clause 2(3) (f). However, there might be a situation in which a comparatively small inconvenience, which did not amount to loss of enjoyment, could be prevented by the way in which the work was done. For example, in the small garden instanced by the noble Lord, obviously if people came through the garden at the time that one was going to use the garden that would be inconvenient, although it might be only occasional entry. A condition might be to say that instead of going through the garden one had to go round to the gable end of the house and follow a particular route.
So one might have inconvenience or loss of privacy which would be so incidental as not to constitute loss of enjoyment of the property and therefore not be measurable. I understand that that is why one wishes to have paragraph (b) in subsection (2). However, if it is a matter of compensation, it has to be something that could significantly be compensated for in money.
Certainly the point is well worth further examination. I should like to be clear from the noble Lord—I think I am —that he wishes to give effect to the general distinction between residential land, as defined narrowly on the one hand, and other land for the purposes of a licence fee.

§ Lord Mishcon
I am perfectly content with what the noble and learned Lord has just said in regard to the difference. I made it clear that I am not after a licence fee for my little men. I seek compensation where the court finds that, despite all the terms and conditions that it can impose, there will still be a loss of privacy and inconvenience to the person who is the subject of the order through no fault of his at all.
In those circumstances, I should be most grateful if between now and Report stage the noble and learned Lord, together with the noble Lord, Lord Murton, would be kind enough to tell me how they intend to react to my amendment—the purpose of my amendment rather than its wording. That would save me the trouble of tabling a suitable amendment with the help of the noble Lord, Lord Coleraine, at Report stage. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ 6.45 p.m.

§ Lord Murton of Lindisfarne moved Amendment No. 14: Page 4, leave out lines 6 to 8 and insert: ("(5) For the purposes of subsection (4) (a) above, the likely financial advantage of an access order to the applicant and any persons connected with him shall in all cases be taken to be a sum of money equal to the greater of the following amounts, that is to say— 889 ( ) the amount (if any) by which so much of any likely increase in the value of any land—

(i) which consists of or includes the dominant land, and
(ii) which is owned or occupied by the same person as the dominant land,

as may reasonably be regarded as attributable to the carrying out of the specified works exceeds the likely cost of carrying out those works with the benefit of the access order; and").

§ The noble Lord said: I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Murton of Lindisfarne moved Amendment No. 15: Page 4, line 15, leave out from ("order") to end of line 24.

§ The noble Lord said: I have spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Murton of Lindisfarne moved Amendment No. 16: Page 4, line 32, leave out from ("them") to end of line 34.

§ The noble Lord said: This amendment is intended to deal with a further point which my noble friend Lord Coleraine was good enough to raise in our earlier debate in connection with the definition of residential land. That definition is provided for the purposes of the provision (in subsection (4)) for the payment of a licence fee to the respondent other than in the case of works to residential land.

§ My noble friend pointed out that under the provisions of Clause 2(6) (c) (ii): the flank wall of a factory might be repaired under the Act without payment for access just because it adjoined or was adjacent to a caretaker's flat".—[Official Report, 11/12/91; col. 826.]

§ My noble friend implied that the provision in subparagraph (ii) is too wide. My amendment now provides for the deletion of the subparagraph from the Bill. While there may be disputes on occasion as to whether a particular part of a building is "used and enjoyed" with a dwelling, I believe that the test in paragraph (c) (i) should be adequate for settling most cases. I beg to move.

§ Lord Coleraine
I am grateful to my noble friend for moving this amendment which deals with the point that I made at Second Reading and reduces the possible areas of doubt and difficulty where the distinction between residential and non-residential land applies. I hope that the Committee will approve it.
On Question, amendment agreed to.

§ Lord Murton of Lindisfarne moved Amendment No. 17: Page 4, line 35, leave out ("subsection (4) above") and insert ("this section").

§ The noble Lord said: I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Coleraine moved Amendment No. 18: Page 5, line 3, at end insert: ("( ) Rules of Court may provide for the costs of an application for an access order to be borne by the applicant 890 unless it appears to the Court that there was no reasonable ground for opposing the application or that the respondent acted unreasonably in opposing the application.").

§ The noble Lord said: By this amendment I intend to allow the rules committees to make rules of court which would have the effect of providing that, unless a respondent to an application for an access order has been unreasonable, the applicant will have to pay the costs of the application.

§ The Bill contains no provision covering the liability of the parties for the cost of an application. As I understand it, the effect will be that the court hearing an application for an access order will have what is called a discretion as to costs. However, in the exercise of that discretion the court will be bound by a general rule that costs follow the event. Again, the effect will mean that if the access order is made, it will be the respondent who will normally have to pay the costs of the application.

§ Many of those consulted by the Law Commission, including the Law Society, were in favour of the applicant normally being held liable for the costs and not the respondent. I share the view of those who would consider it unjust that a reasonable respondent should find himself liable for costs.

§ I have been over this ground twice in Second Reading debates on this Bill and its predecessor. The Committee will have understood my arguments and I do not propose to repeat them now. Neither my noble and learned friend the Lord Chancellor nor my noble and learned friend the Lord Advocate who responded to the debate on the former Bill in July have yet responded to those arguments. I hope that this may be the opportunity to hear the reply. I beg to move.

§ Lord Murton of Lindisfarne
This is a difficult issue. My view is that on balance we should follow the views of the Law Commission, particularly in view of the arguments put forward in paragraphs 4.115 to 4.117 of its report, to which my noble friend referred. However, I am not a lawyer and I recognise that this is a most recondite subject for the uninitiated. I should prefer to hear the views of my noble and learned friend the Lord Chancellor.

§ Lord Renton
I have not dared to utter on the Bill until this moment. However, I wish to support my noble friend Lord Coleraine's amendment. As he said, in the courts the costs normally follow the event, subject to a discretion of the court. Parliament does not generally give to the courts guidance of the kind suggested in the amendment. However, I believe that the circumstances which arise in respect of this clause require guidance to be given. The circumstances are unprecedented and unusual. Future injustice could be saved by ensuring that those landowners and occupiers who have an interest in the court helping to get the matter right should not be deterred by a fear of having to pay heavy costs in order to do so. Therefore, I hope that my noble and learned friend will consider the matter both carefully and sympathetically. I believe that a good case has been made for departing from the normal rule that we do not guide the courts in statutes as to matters of costs.

891

§ Lord Wilberforce
I support the amendment for the reasons given by my noble friend Lord Renton. I do so regardless of whether it is the right technique to use in order to bring about the desired result. I do not know enough about it. The principle must surely be right that in a Bill of this kind the costs should be borne automatically, unless there is unreasonable conduct by the applicant.

§ The Lord Chancellor
The matter was carefully considered by the Law Commission. When a body of such authority has dealt with a matter one ought at least to start from the presumption that it has got it right. The amendment as proposed achieves nothing that could not be achieved without it. The rules of court could provide for that in any event if the appropriate rules committee thought it right. On occasions my noble friend Lord Renton has drawn my attention to the desirability of avoiding unnecessary words in statutes.
I turn to the principle of the issue. The Law Commission concluded that the usual costs rules should apply. That view was stated in paragraph 4.118 of its report. It put forward three reasons to justify its conclusion. The first was that agreement will be made easier, and the need to go to court avoided, if the respondent knows, or is advised, that he will probably incur an order for costs against him if he unreasonably refuses access in a case clearly within the scheme. The second was that the ordinary discretion as to costs will enable the court to make its decision on the basis of what is fair and reasonable in the circumstances of the case, having regard to matters such as the outcome of the case and the terms offered before litigation. It would be wrong for the rule to be that the applicant, win or lose, should generally pay the respondent's costs. The latter part of the amendment provides that the respondent acted unreasonably in opposing the application. Therefore, that is to some extent a way in which the Law Commission's point could be met. On the other hand, it may be that there are better ways of doing so.
The Law Commission's third reason was that a presumption that the respondent should never be out of pocket would be inconsistent with the provisions in the Legal Aid Act 1988, which restricts the liability of a legally-assisted person to contribute towards the costs of a successful opponent. If a legally-aided person made an application under the Bill the situation would be somewhat complicated. Since an assisted person's liability to contribute towards his successful opponent's costs is limited, a presumption that the respondent should never be out of pocket would cause difficulties if the applicant were an assisted person. Win or lose, the respondent would be unable to recover his full costs from anyone. There does not appear to be a satisfactory solution to that particular point.
Furthermore, in the kind of situation with which we are dealing the respondent would be able to protect his position on costs by making a written offer expressed as "without prejudice except as to costs" setting out the terms on which he is prepared to allow access. The rules of the Supreme Court and the county court rules provide for that. If the order ultimately obtained by 892 the applicant is not significantly more favourable to him, the respondent on producing the letter is likely to win a court order granting him his costs since the date of the letter.
I understand the sentiment behind the amendment tabled by my noble friend Lord Coleraine, supported as it is by my noble friend Lord Renton and my noble and learned friend Lord Wilberforce. I suggest that if the Committee were to approve the Bill without the amendment I should undertake to draw to the attention of the rules committee the considerations that have been raised in this Chamber. As I said, it may well be that the committee already has the power to do what is required and the considerations put forward would be for it to decide upon. I hope that my noble friend will consider that to be a satisfactory way forward. I should find it difficult to—

§ Lord Coleraine
Perhaps I may intervene. If my noble and learned friend were to draw my points to the attention of the rules committee with a favourable recommendation I might feel differently. However, so far he has said nothing to suggest that he will do so.

§ The Lord Chancellor
I should express considerable understanding and sympathy with the view expressed by my noble friend. I should certainly do that but obviously I should wish to put it to the rules committee to consider all the circumstances. Furthermore, the rules committee might develop expertise on the matter as the application of the Bill, if it became an Act, worked out in practice. I should undertake to put to the rules committee the speeches that have been made today, coupled with a view from me that the matter required to be considered most carefully. I should also point out that I thought there was considerable force in the view expressed by my noble friend. Of course, the Law Commission's reasons must be carefully considered also.

§ Lord Renton
Perhaps I may say to my noble friend Lord Coleraine that I feel confident about the outcome of the undertaking given by my noble and learned friend the Lord Chancellor.

§ Lord Coleraine
I am grateful to the noble and learned Lord, Lord Wilberforce, and to my noble friend Lord Renton for their support of the amendment. I was originally taken with the idea put forward by my noble friend that this might be an occasion to put something on the face of the Bill. However, I should view that very much a resort after the last resort because I do not believe that this is an appropriate time to put a provision of this kind on the face of the Bill.
I wish to consider what was said by my noble and learned friend. His undertaking is one that I would not lightly pass by. I am sure that in addition to putting forward the points that I have made today he will also put forward my more detailed points and my expressions of the way in which public reaction would respond to this application for costs rules. I hope that my noble and learned friend will place before the rules committee my earlier speeches as well as those made in today's debate. In the circumstances I beg leave to withdraw the amendment.
893 Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.

§ 7 p.m.

§ Clause 3 [Effect of access order]:

§ Lord Murton of Lindisfarne moved Amendment No. 19: Page 6, line 2, at end insert: ("( ) Where the applicant or any of his associates is authorised or required under or by virtue of an access order or this section to enter, or do any other thing, upon the servient land, he shall not (as respects that access order) be taken to be a trespasser from the beginning on account of his, or any other person's, subsequent conduct.").

§ The noble Lord said: This is a technical amendment which will I hope be uncontroversial but which requires a word or two of explanation. The Law Commission drew attention in paragraph 4.111 of their report to the rule stated in Six Carpenters' case of 1610 to the effect that, where a person having entered upon land under an authority given by law subsequently abuses that authority he becomes a trespasser ab initio, his misconduct relating back so as to make his original entry tortious".

§ The Law Commission's draft Bill had a provision which deemed the applicant's entry under the access order to have been with the respondent's consent. The present Bill omits the deeming provision. However, it has since been noticed that this omission creates a risk that the so-called trespass ab initio rule would apply so as retrospectively to render unlawful the applicant's entry pursuant to an access order if he exceeded the authority given him by the order or acted in breach of a condition. This amendment expressly negatives the rule and so removes that risk.

§ There are a number of statutory precedents for this negation, for instance, the Child Support Act of 1991, Section 35(5). I beg to move.

§ Lord Wilberforce
I congratulate the noble Lord on having unearthed the delightful doctrine of trespass ab initio and the authorities which have supported it. This treasure having been found, it must be enshrined in the Bill. I am happy to support it.

§ The Lord Chancellor
I should like to join in these congratulations and perhaps add that it is particularly a subject for congratulation that my noble friend has managed to deal with this matter without actually mentioning the phrase "ab initio".
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Persons bound by access order, unidentified persons and bar on contracting out]:

§ Lord Murton of Lindisfarne moved Amendment No. 20: Page 6, line 8, leave out ("is") and insert ("shall, subject to the provisions of the Land Charges Act 1972 and the Land Registration Act 1925, be").

§ The noble Lord said: Amendment No. 20 paves the way for the registration of access orders which is provided for by the new clause (Amendment No. 21) which stands in my name. The amendment will make access orders binding on subsequent purchasers of the servient land where the order is registered in accordance with the provisions of the new clause, 894 subject to the provisions of the Land Charges Act 1972 and the Land Registration Act 1925. I have tabled these amendments in response to the concern expressed by the noble Lord, Lord Mishcon, in the Second Reading debate about the possible difficulties of conveyancers.

§ Amendment No. 21 (the new clause) makes the necessary technical provisions for the registration of applications and access orders under the Land Charges Act 1972 for unregistered land and under the Land Registration Act 1925 for registered land in subsections (1) to (3). Subsection (4) provides that where an access order has been discharged following an application to the court under Clause 5(1) (a) then the court has power to direct the cancellation of a registered entry, notice or caution in respect of that access order.

§ Subsection (5) is a technical provision which is designed to forestall any possible arguments that a person who has obtained an access order and is in actual occupation of the land (that is, to carry out the authorised works) from obtaining an overriding interest in the land, that is to say an interest which binds purchasers of registered land even though it is not protected by registration. If access orders were capable of being overriding interests, this would undermine the requirements of registration provided by this amendment.

§ Subsection (6) is another technical amendment which enables an application for an access order to be registered as a "pending land action"; so that if, for example, a respondent sells the land while an application against him is pending, the purchaser will be aware of the application for an access order and the applicant will, in the case of registered land, be notified by the Land Registry that there is to be a change in ownership of the land. That will enable him to join the new owner to the proceedings without having to start all over again, and without facing an application later on for variation or discharge of the order by the new owner. I beg to move Amendment No. 20.

§ Lord Mishcon
When I raised this matter at Second Reading, I was indebted for the point to the Law Society and indeed I believe, to a member of the Law Commission. Therefore any gratitude for this coming into the Bill ought to go to the Law Society and to that gentleman, as well as to the noble Lord, for having introduced it now.

§ The Lord Chancellor
I support this amendment with gratitude, and I should like to join the noble Lord, Lord Mishcon, in expressing gratitude to the Law Society, the Law Commissioner and to the noble Lord, Lord Mishcon, himself, as well as to my noble friend for having dealt with it, as I think, so well.

§ On Question, amendment agreed to.

§ Clause 4, as amended, agreed to.

§ Lord Murton of Lindisfarne moved Amendment No. 21: After Clause 4, insert the following new clause:

895

§ Registration of applications and access orders

§ (".—(1) In section 6(1) of the Land Charges Act 1972 (which specifies the writs and orders affecting land that may be entered in the register) after paragraph (c) there shall be added— (d) any access order under the Access to Neighbouring Land Act 1992.

§ (2) In section 49 of the Land Registration Act 1925 (rules to provide for certain rights, interests and claims to be protected by notice) in subsection (1) (which specifies those rights, interests and claims) after paragraph (h) there shall be added— (j) Access orders under the Access to Neighbouring Land Act 1992 which, notwithstanding section 59 of this Act, it may be deemed expedient to protect by notice instead of by caution.

§ (3) In section 64 of that Act (production of certificates for noting on certain dealings etc) after subsection (6) there shall be added— (7) Subsection (1) above shall also not require the production of the land certificate or of any charge certificate when a person applies for the registration of a notice in respect of an access order under the Access to Neighbouring Land Act 1992.

§ (4) In any case where—

(a) an access order is discharged under section 5(1) (a) below, and
(b) the order has been protected by an entry registered under the Land Charges Act 1972 or by a notice or caution under the Land Registration Act 1925,

the court may by order direct that the entry, notice or caution shall be cancelled.

§ (5) The rights conferred on a person by or under an access order are not capable of constituting an overriding interest within the meaning of the Land Registration Act 1925, notwithstanding that he or any other person is in actual occupation of the whole or any part of the servient land in question.

§ (6) An application for an access order shall be regarded as a pending land action for the purposes of the Land Charges Act 1972 and the Land Registration Act 1925.").

§ The noble Lord said: I spoke to this amendment when speaking to Amendment No. 20. I beg to move the new clause as printed.

§ On Question, amendment agreed to.

§ Remaining clauses agreed to.

§ House resumed: Bill reported with amendments.