§ Amendments reported (according to Order).
§ Clause 3 [Effect of registered notice and proceedings relating thereto]:
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR) had given notice of several Amendments to the clause, the first being in subsection (3) to leave out "next following subsection "and insert" following provisions of this section". The noble and learned Viscount said: My Lords, your Lordships will see that there are a number of Amendments standing in my name. These, with the exception of the second one, which is really an improvement in the drafting and in the general structure of the clause, but little more than a drafting Amendment, go together and constitute one change of substance in the Bill, the crux of which appears in the third Amendment. It may be convenient therefore if, in moving the first Amendment, I go on to explain the general object of the entire group of Amendments. They are introduced to meet a point which the noble Lord, Lord Granville-West, raised on the Committee stage, and I hope they do so meet it; but as they are solely directed to the one point, I think it will be for the convenience of the House if I go through them at once.
§ The first Amendment of the group is merely altering a cross-reference which follows from the third and principal Amendment. The second one I have already described as being mainly a drafting Amendment for the improvement of the clause. The third Amendment which introduces a new subsection enables proceedings to be brought to challenge the registration of a notice where the dominant owner would have acquired a right of light if he had enjoyed the access of light for one year longer than he has in fact done so. This is the Amendment which I mentioned that is designed to meet a shortcoming in the operation of the clause pointed out by the noble Lord, Lord Granville-West, during the Committee stage.
§ At the present time, subsection (3) enables proceedings to be brought only on the basis of an existing right of light at the time when the action is commenced. Since, however, under the 840 Prescription Act, 1832, a right of light is acquired only after twenty years' enjoyment, although the inchoate right can no longer be defeated after enjoyment of nineteen years and one day, and since under the proviso to subsection (3) an action to challenge the registration must be brought within one year from the date of restriction, a dominant owner wishing to challenge a registration made nineteen years and one day (or one week) after he started to enjoy the right of light would only have the one day (or the one week) to do so. This Amendment will enable him to bring his proceedings at any time during the year beginning with the date of registration.
§ As I pointed out to the noble Lord, the Amendment may not be strictly necessary, because the dominant owner could probably rely upon the doctrine of lost modern grant in proceedings brought under subsection (3); and it is also not improbable, though impossible to predict in a new field, that the court would entertain a quia timet action based on the perfection of the title to the right of light on the effluxion of twenty years within the next year. But I think the noble Lord preferred that the matter should be clarified, and I am always anxious to meet the House in the direction of clarification. So I have put down this Amendment which I think will help.
§ The remaining Amendments are consequential, and I do not think I need take up your Lordships' time with them. With your Lordships' permission, I will move all the Amendments together. I beg to move that these Amendments be made.
§
Amendments moved—
Page 4, line 20, leave out ("next following subsection") and insert ("following provisions of this section")
Line 26, leave out ("the erection of")
Line 30, at end insert—
("(4) Where, at any time during the period for which a notice registered under the last preceding section has effect, the circumstances are such that, if the access of light to the dominant building had been enjoyed continuously from a date one year earlier than the date on which the enjoyment thereof in fact began a person would have had a right of action in any court by virtue of the last preceding subsection in respect of the registration of the notice, that person shall have the like right of action in that court by virtue of this subsection in respect of the registration of the notice.")
841
Line 32, leave out ("the last preceding subsection") and insert ("subsection (3) or subsection (4) of this section")
Line 33, leave out from ("be") to ("and") in line 35 and insert ("such declaration as the court may consider appropriate in the circumstances,")
Page 5, line 2, after ("(3)") insert ("or subsection (4)")
Line 12, leave out from ("court") to end of line 13 and insert ("decides against the claim of the plaintiff,")
—(The Lord Chancellor.)
§ LORD GRANVILLE-WESTMy Lords. I trust that I may be permitted to trespass on your Lordships' time for a moment to express my thanks to the noble and learned Viscount for the Amendments he has moved, and for the consideration he has given to the point which I raised on the Committee stage 842 of the Bill. The Amendments which have now been moved completely cover the point that I had in mind, and I am deeply grateful to the Lord Chancellor for the consideration he has given and for having taken this course.
§ On Question, Amendments agreed to.