§ Order for Second Reading read.
§ 11.28 a.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I beg to move. That the Bill be now read a Second time.
Of late years enemy bombing and planning legislation combined have disrupted the working of our law about rights of light. In March, 1957, my noble Friend the Lord Chancellor appointed a Committee under Mr. Justice Harman, as he then was, to advise whether legislation was required to amend the law relating to rights of light. The Committee's Report was published on 14th July last year. The object of the Bill is to give effect to its recommendations, with some minor modifications.
Before I explain the Bill, the House will wish me to express our gratitude to Lord Justice Harman and his Committee for the excellence and expedition 794 of their work. I think that the House will also wish to express its thanks to those bodies with expert knowledge in this field, who gave up time and took trouble to give evidence before the Committee, particularly the Law Society, the Chartered Auctioneers' and Estate Agents' Institute, and the Royal Institution of Chartered Surveyors.
Certain provisions of the Bill will be temporary in effect, and others permanent. The temporary provisions are contained in Clause 1, and I can, I think, quite shortly explain the need for them. As I understand it, in our law the owner of a building does not have a natural right to the light which flows over his neighbour's land to his windows or skylights but he can acquire such a right to light—a kind of negative easement—by grant or by agreement; or such a right can be established by long enjoyment—by prescription, as the lawyers say.
In theory it can be acquired by prescription at common law, in rare cases, on the basis of the doctrine of modern lost grant, and much more usually under the Prescription Act, 1832. The right once established can be protected either by an action for a declaration of the rights of the parties or an action restraining some threatened or actual obstruction. The relevant Section of the Prescription Act is conveniently set out in the Report in paragraph 9, and says, if I may venture to paraphase, that the right can be established by twenty years' uninterrupted enjoyment, save by consent, of the flow of light, but it also says that nothing less than a full year's break, after the victim has had notice of it, can count as an interruption.
The result is that enjoyment for nineteen years and one day creates an indefeasible right. In normal circumstances, that is quite long enough, because the owner of the servient land can protect himself by building or otherwise. However, the circumstances are now quite abnormal. In the first place, bombing has left flattened sites in our cities, or buildings with "bites" out of them—if I might use the phrase—reducing their opacity. It has all been quite haphazard as between owners affected.
Secondly, building has been prevented—before the war by anxieties, and during and after the war by shortages of labour and materials, and by statutory 795 restrictions upon building which were not finally abolished until 1954.
Some remedy is now urgent because, as the House will recall, the worst of our bombings began in 1940—just nineteen years ago. So the position now is that the owners of buildings overlooking sites that are vacant through bombing or otherwise are entitled at law to restrain redevelopment of the sites, however reasonable, proper and desirable that redevelopment may be, and although the owner of the site has been prevented from building through no fault of his own.
The remedy suggested by the Committee, and adopted in this Bill, is a temporary extension of the twenty-year period of enjoyment to one of twenty-seven years to end at the end of 1962; that extended period to apply in a limited field only. It will apply to actions asserting the right to light brought between 14th July, 1958, the date of publication of the Report, and the end of 1962. But where the action has been brought before the passing of the Bill into law it will apply only if the action has not been finally disposed of.
Secondly, it will apply to actions brought after the end of 1962 in respect of an obstruction by reason of something done before the end of 1962. That is obviously necessary, because the defendant will have to be able to rely on the seven-year extension in such an action.
The result will be that anyone claiming a right to light before the end of 1962 will have to rely on uninterrupted enjoyment for twenty-seven years. The position will normally be the same where the claim is founded on the doctrine of modern lost grant as it is in relation to the Prescription Act, and will give the owner of the servient land until the end of 1962 to take the necessary steps to protect himself by building or otherwise.
I should say a word about the retrospective aspect of the legislation, as many, indeed most, hon. Members on both sides take the view that legislation should never be retrospective in effect unless there be wholly exceptional circumstances to justify it.
When Her Majesty's Government announced on 14th July, 1958, that they 796 intended generally to accept the recommendations of the Committee, they then announced that they accepted the Committee's proposal that legislation should provide for the extended period to operate from the date of publication of the Report. That, the House will appreciate, is an absolute necessity, as otherwise the owner of the dominant building could wholly defeat the Bill before it became law by doing nothing more mysterious than bringing an action for a declaration that he had acquired the right by reason of twenty years uninterrupted enjoyment before the Bill became law. This provision, therefore, is absolutely necessary.
However, one is not out of trouble even then—one never is with retrospective legislation. If the flow of light enjoyed began in 1934, these provisions will allow rights of light enjoyed for upwards of nineteen years to be disturbed during the two and a half years to the end of 1962. Unhappily, of course, the owner of the dominant building may have spent money in the faith that he had a right to light, and some purchaser may have bought the land at a price that reflects the fact that it was supposed to have a right to light.
The Committee recognised the difficulties and said, in paragraph 36 of its Report:Nevertheless, it seems to us that exceptional factors justify the degree of interference with existing rights which our proposals entail.The Committee goes on to set out its reasons for that, and I have no need to repeat them. We find those reasons compelling, and I submit to the House that the results, though unfortunate, ought, in the circumstances, to be accepted.
The principal permanent provisions are to be found in Clauses 2 and 3. In the past, in the ordinary way, the owner of the servient land who could not build or secure in writing the proposition that the enjoyment of light was with his consent, could protect himself against the acquisition of adverse rights over his land by putting up a screen to obstruct the access of light to his neighbour's building. A screen is rather a repulsive object. It is an unworthy use of labour and materials. It is, seemingly, a spiteful object in character, and, invariably, it is unsightly, so that planning permission should not really be given on 797 aesthetic grounds to putting it up were it not for the fact that not to give permission means robbing an owner of his rights.
The ingenious remedy suggested by the Committee, and here adopted, is that, instead of a screen, we should have a notional screen taking the form of a statutory notice registered in the local register of land charges. The notice, once registered, will operate equally for the purpose of the 1832 Act and for a claim based on the doctrine of modern lost grant. After it has been registered for a year, it will constitute an interruption of the enjoyment and, accordingly, after a year's registration, claims based on long enjoyment under the Prescription Act will be rendered void.
The application must, of course, have safeguards to ensure that all those likely to be affected by the notice have notice of it, and it has, accordingly, to be accompanied by a certificate of the Lands Tribunal that adequate notice has been given to all such persons. In cases of exceptional urgency, a temporary notice may be registered for such period as the Lands Tribunal may specify, and such a temporary notice will cease to have effect at the end of the period unless it is kept alive by the lodgment of a further certificate.
The notice registered will operate as the equivalent of an interruption unless it is cancelled, lapses within a year, or is effectively challenged by action within a year; and the court in the action is given power to direct cancellation or such variation of the registration of the notice as may be appropriate.
Clause 4 is not based on any recommendation of the Committee. It represents an attempt to prevent the system of registration of notices being bypassed by agreement which would have the same effect but which would not require publicity or registration. Unhappily, representations that have reached the Government since the Bill left another place have satisfied us that this, in its working, would involve insufferable complexities for the registration authorities and the legal profession, and we shall—although I would not dream of inflicting myself on the House to argue it now—later invite the House to delete that Clause.
The remaining provisions may properly be described as ancillary and 798 supplementary, and I need not give them special notice. I hope that this preface will suffice to entitle me to commend the Bill to the House as being good and necessary.
§ 11.40 a.m.
§ Mr. A. J. Irvine (Edge Hill)
We on this side of the House welcome the Bill, and we are most grateful to the right hon. and learned Gentleman for his helpful and lucid explanation of its provisions. I wish to join in the tribute paid to the Harman Committee. Occasionally, it happens that, by reason of the felicitous language used, a report of a Committee is not only instructive, but is also a pleasure to read. The Harman Committe's Report is an example of that.
We are at a point of time when, unless appropriate steps are taken, considerable numbers of rights of light will begin to be acquired over bombed sites. This results, as the learned Solicitor-General has said, from the time that has now elapsed since the war. Although twenty years is the period of prescription, there has to be a full year's interruption to defeat the acquisition of the easement. Therefore, for all practical purposes, nineteen years is the period with which we are concerned, and we are just about at the time when these rights will start to be acquired. Hence the urgency of the present Measure.
Of these rights affecting bombed sites, if they were acquired under existing law, it seems to me that two things can be said. First, one can say that in their inception they were adventitious, and it may be thought not desirable that rights initiated by circumstances of public emergency and hazard should be dealt with on the same plane as other rights.
Secondly, as I see it, the prospective servient owners, at least for part of the time since the war, will often have been handicapped by building restrictions and planning control in taking the steps necessary to prevent the acquisition of an easement by putting up buildings or screens. It therefore comes to this—although I must confess that I step warily when I go into Lincoln's Inn—that the acquisition of rights by uninterrupted enjoyment over a statutory period operates in a fair and orderly fashion only when, first, the rights are not initiated by circumstances of emergency and hazard and, secondly, when no exceptional obstacles are placed 799 in the way of those who may legitimately desire to obstruct the acquisition of the right by, in this case, erecting buildings or putting up screens. It is for those reasons that the Bill is necessary.
The learned Solicitor-General referred to the retrospective effect that the Bill may have. It is true that it would seem that some hardship may be caused in a few cases. As he pointed out, extending the period to twenty-seven years will affect a case where rights started to accrue in, say, 1934. In such a case, the inception of the right would not have the characteristics to which I have referred. The prospective servient owner would have been, however, during the years of war and the period of post-war restrictions, obstructed in his opportunity of defeating the acquisition of the easement by building.
That would be the effect of the postwar restrictions which were imposed. It seems right, therefore, that he should get relief for that. Yet it is true, as the right hon. and learned Gentleman pointed out, that there may have been, since 1954. a sale of the lands affected at prices which were arrived at on the assumption that a right of light had been acquired by a neighbouring owner. This assumption might have had an effect upon the purchase price of either the dominant or the servient land if either of them had been in the market. However, although one recognises that there may be a difficulty there, I fully accept the view expressed that, bearing all the circumstances in mind, the method proposed for dealing with the problem as a whole is the correct method to adopt.
As was pointed out, the Bill, in addition to dealing with temporary factors created by the war, provides for certain permanent changes in the law. The acquisition of a right of light can in future be defeated, as I understand it, by the registration of a notice in the register of local land charges. This is really required, as I see it, because of the conflict that may occur between planning control and the freedom of owners to erect buildings or screens to prevent the acquisition by a neighbour of a right to light.
That raises an interesting point. The difficulty could, perhaps, have been 800 overcome by an amendment of the 1947 Act, proposed either in 1947 or at a later date, providing that the erection of a screen was outside the definition of development in town planning law, if it could be shown that it was erected solely to defeat the acquisition of a right of this kind. I do not know whether that point occurred to anyone at the time, but it would have been one way of dealing with the difficulty. It is true, as has been said, that the screens in themselves will often be inherently unsightly objects and it may well be thought contrary to the long-term purposes of town planning legislation to make the kind of exception which I have suggested.
I would think that the Bill places a considerable responsibility upon the Lands Tribunal in its provisions dealing with the delivery and service of the necessary notices. Of course, although screens are unsightly things, they do have the advantage for this purpose that they keep constantly in the minds and in the vision of those affected what the true situation is. They serve a useful purpose in that respect, and it will be very important that the greatest care shall be taken to ensure that sufficient and adequate notices of registration are served upon all those who are interested.
In my consideration of the Bill, there has been at any time only one point upon which I have entertained any doubt on the merits, and that point is this. It might have been decided to deal with the whole matter by giving either to the High Court or to the county court—but preferably, I should have thought, to the High Court—a discretion to extend the prescriptive period in particular cases instead of treating the matter by increasing the statutory period. That would have enabled the courts, in such cases, to inquire into what had actually occurred—whether, in fact, efforts had been made to build which had been obstructed by building restrictions, or whether in certain cases applications had been made for planning permission and had been refused.
However, I am aware of the difficulties and objections which would have stood in the way of that treatment of the matter and I am fully satisfied that the method proposed is better, and I end as I began by saying that on this side of the House we welcome the Bill.
§ 11.50 a.m.
§ Mr. Barnett Janner (Leicester, North-West)
As a practising solicitor, I rise to endorse the point of view expressed by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. Irvine) and also to say that it appears to me that this Measure is useful and, if anything, a little overdue.
I am talking now in a general sense, apart from the question of the emergency that has arisen. We find, in practice, a difficulty in tracing easements. It is not easy, when giving advice when a property is being purchased, to be able to ascertain exactly what the easements are when such easements are not regisered. I think that it will be very useful in future to have the easement of light registered, so that when an inquiry is being made with respect to the purchase of property, the people concerned with the purchase, as well as the vendor's lawyers, will be in a position to give a more exact understanding of the actual circumstances that exist with regard to the right of light.
Several years ago I had the difficult and unhappy experience of having to advise a client to erect a huge hoarding at the side of his premises so that there should not be an acquisition of light. It was ridiculous and it cost the man a considerable amount of money. It was an ugly thing between two plots. Nevertheless, to comply with the necessary requirement to prevent the adjoining landowner from obtaining a right of light, this had to be done.
In my view, the hardship could be overcome, and, as is evidently the intention here, will be overcome, by registering the particular easement, if there is an easement, and by taking the steps provided. I do not think that a person who has purchased land, say in the City of London, would have relied upon that land acquiring a right of light because of the time for prescription having run out. I am sure that if anyone bought a piece of land in the City, he would not have expected that he would he allowed to have that plot and to have a right of access to light to that plot because nobody else would build on the adjoining land. As the circumstances are, in consequence of the difficulties that prevail with regard to building, I can hardly believe that anyone who purchased would be done a grave injustice, if any in- 802 justice at all, if he were now prevented from acquring a right of that light.
Therefore, from the point of view of the purchaser and the person who has purchased before—even though I am also seriously perturbed about any restrospective legislation, as everybody is—I do not think that, in the main, there is likely to be very much injustice done if the period is extended and the provisions of this Bill are put into effect. In the circumstances, I think that it will bring a considerable amount of benefit to all concerned in that it will place people in the position of knowing what actually does exit in the way of this easement, and, consequently, will give facilites for purchase and sale without the likelihood of any misunderstanding.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. Bryan.]
§ Committee upon Monday next.