HL Deb 11 December 1991 vol 533 cc819-35

8.16 p.m.

Lord Murton of Lindisfarne

My Lords, I beg to move that this Bill be now read a second time.

The Bill has its origins in the Law Commission Report No. 151 which was presented to Parliament in December 1985. It relates to the rights of persons to gain access to neighbouring land for the purpose of carrying out work to their own land. The present law does not provide any general means whereby a person who is unable to carry out necessary work to his own land without access to that of his neighbour can lawfully enter that land without the neighbour's permission.

The word "land" has the meaning ascribed to it by Schedule 1 to the Interpretation Act 1978. It includes buildings and other structures which in law form part of the land and the airspace above the ground. A Bill intituled Rights of Access to Neighbouring Land, drafted to implement the recommendations of the Law Commission report, was brought from the Commons on 8th July this year. It had been introduced in another place on 5th July by my honourable friend the Member for Poole, Mr. John Ward, when it went through all stages on the nod. I had agreed to take his Bill through your Lordships' House and it was read a second time on 16th July shortly before the Summer Recess.

A Committee stage was arranged for 15th October. However when I studied the amendments which had been tabled by some noble Lords, and perceived that some were fundamental, it became clear to me that the Bill could not proceed, if for no other reason than that the rules of procedure in the Commons did not allow of further Private Members' time before prorogation of the 1990–91 Session. With Mr. Ward's concurrence I therefore withdrew his Bill.

I was anxious, however, that the opportunity to introduce such a useful if modest measure should not be lost. After taking the advice of my noble and learned friend the Lord Chancellor, I agreed to introduce a Bill myself, but in revised form. The Bill now before your Lordships has been redrafted after consultation with various interested parties in order to meet, as far as is considered practicable, the suggested improvements which have been offered. In particular it has incorporated the main points of criticism raised by noble Lords during the Second Reading debate on its predecessor.

Mr. Ward introduced his Bill principally in an attempt to resolve a painful and long-standing impasse involving a householder in his constituency. I described the situation fully in the Second Reading debate on the original Bill on 16th July. This evening I shall only summarise.

The origins of a conflict between two neighbours, Mr. X and Mr. Y, were centred on a tree on X's land alleged to be overhanging and undermining Y's garage. Ultimately to pacify Mr. Y, Mr. X cut back all the overhanging branches and in his turn asked permission to enter Mr. Y's land in order to carry out some remedial work to the flank wall of his house where defective rendering was allowing rain water to penetrate. That was refused. There followed a long history involving solicitors, surveyors and tree surgeons. The tree was removed voluntarily although the roots were found to be innoxious. Eventually permission was offered by Mr. Y to Mr. X for entry to repair the flank wall, but only on condition that X paid Y's legal fees of £250. On his solicitor's advice X declined.

So the matter rested for three years until Mr. X retired and decided to leave the district. He had agreed to sell his house to his son-in-law, Mr. Z. Before completion he again tried to come to terms with his neighbour, Mr. Y, only to be told that the licence for entry—if I may call it such—was now to be £555. Mr. X declined to pay and Mr. Z bought the house without the dispute being resolved. Two years have since passed. Letters written to Y by the new owner, Z, have remained unanswered. The leak in the flank wall grows worse and Z's wife is ill with stress. The situation is deadlocked.

By coincidence, some 27 years ago, as Mr. Ward's predecessor as Member for the same constituency, I was faced with a similar case which I found incapable of resolution. It concerned collapsed guttering on the house of Mr. A which could be repaired only by placing a ladder on Mr. B's land. That permission was constantly refused. I was appalled when I saw the extent of the damage which had ensued. It was a small house of two bedrooms, one of which was full of collapsed plaster, covered in mould and quite uninhabitable. In case your Lordships should gain the impression that such problems are peculiar to Poole, I offer the assurance that I have knowledge of other cases, for instance in rural Gloucestershire and, at the other extreme, the London Borough of Brent.

As I have already stated, the law does not provide any general right enabling a person to gain access to neighbouring land in order to carry out work to his own land. In consequence a person who enters neighbouring land without any authority does so as a trespasser and renders himself liable to civil proceedings at the suit of the occupier. It is no defence to show that the need for access was compelling or that loss arising to the plaintiff from access by the defendant was negligible.

There are a small number of exceptions, such as the easements of various kinds, covenants, contracts or licences and estoppel rights. Peculiar to London, the London Building Acts (Amendment) Act 1939 may in certain circumstances provide an owner with a right of access to his neighbour's land. Generally speaking, however, reliance for access rests on good neighbourly relationships in which two or possibly more neighbours come to an amicable arrangement whereby A is given permission to enter upon B's land with a promise to make good any damage caused. Alternatively, B may offer to do the work himself subject to reimbursement by A.

Unfortunately, not all owners of land, in its broadest sense, are that amenable. It could be claimed by some that their boundary should remain inviolable, whatever the discomfort to their neighbours. However, many public authorities already have statutory rights of access to carry out their functions in the interests of the public at large, for example, under the Public Health Act 1936 or the Rights of Entry (Gas and Electricity Boards) Act 1954.

It has been pointed out to me in that connection that though there may have been no foreseeable complication in dealing with urban or semi-urban aspects of the problem as covered in the original Bill, considerable reservations were expressed by the Country Landowners' Association and others regarding the possibility of statutory undertakers using the measure as a means of avoiding the payment of negotiating rights for entry on to land for the maintenance or repair of their installations.

Likewise, it has been suggested, for example, that a large-scale extractor of timber might acquire sanction to cross another's land in order to avoid a more difficult route of entry or of exit. The Bill is framed to take account as far as possible of those reservations. I shall give broad details shortly.

The temporary right of access to another's land will only be at the discretion of county courts and the High Court, who shall have jurisdiction in all access proceedings. In the Bill the temporary right of access shall be specifically for basic preservation works; namely, work necessary to protect, repair or maintain the applicant's property. Such work must be reasonably necessary and, in regard to buildings and other structures, may include inspection, repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition. Improvements and alterations contemplated for their own sake are not to count as basic preservation work and are outside the scope of the Bill. Improvements and alterations which are incidental to the basic preservation work are not so excluded so long as they could not be construed as development. The categories of work envisaged are set out in Clause 1(4) of the Bill.

Access orders would not be obtainable against the Crown.

The courts will have the normal discretion as to costs, which shall be exercisable in accordance with existing principles including those applicable for any party who is legally assisted. In that connection the court may also make provision for the reimbursement to the respondent of certain expenses such as professional fees reasonably incurred before any proceedings were instituted.

It is always to be hoped that neighbours finding themselves in difficulties can come to an amicable agreement before resorting to the law. To my mind it would be rare, but nonetheless unfortunate, if neighbour B were suddenly to find himself respondent to an access order sought by the applicant neighbour, A, without a prior attempt at an informal compromise. For that reason I venture to suggest to my noble and learned friend the Lord Chancellor that he might consider the recommendation in paragraph 3.63 of the Law Commission's report that anyone contemplating application to the court could, without having to seek professional assistance, use a suitable proforma letter to send to his neighbour as the basis of an effective "letter before action" in the hope that the two sides might then come to terms and thus avoid subsequent litigation through having to call into effect the provisions of the Bill.

Anxieties have been expressed about certain aspects of the original Bill by the Country Landowners' Association, the Royal Institution of Chartered Surveyors and also the National Trust. To a large extent those anxieties have been addressed in the present Bill. In summary, there are four main changes. The first relates to the circumstances in which the power to make an access order may be exercised. Under the original Bill the court was required to be satisfied before making an access order that either the works cannot be carried out or they would be more difficult or more expensive to carry out without entry upon the neighbour's land. In Clause 1(2) (b) of the Bill the words "or expensive" have been omitted. Thus the mere fact that the works would be substantially more expensive to carry out without entry would not be sufficient to justify an application for an access order.

The second point concerns the grounds for refusing an order. Under the original Bill the court was required not to make an access order if it was satisfied by the respondent that entry by the applicant would cause such hardship that it would be unreasonable to make the order. That test was criticised as being too stringent and not going far enough towards the protection of the respondent. Under Clause 1(3) of the Bill a wider test is provided in place of the hardship test. The court must refuse an access order where it is satisfied that the respondent or any other person would suffer interference with or disturbance of his use or enjoyment of the land arising from the entry to such a degree that it would be unreasonable to make the order. That test, which borrows its terminology from the tort of nuisance, is intended to address more clearly not only the likely effects of access on the respondent, but also the effect of access on his land.

The third point concerns terms and conditions of access orders. Under the original Bill the court was allowed to make it a condition of an access order that compensation should be paid for any loss, damage or injury the respondent might suffer, but was expressly forbidden to stipulate compensation for inconvenience or for the mere making of an access order. Under the Bill those express restrictions have been removed. The interpretation of loss will be a matter for the courts, but in other contexts the courts have held that the term is wide enough to encompass non-monetary loss.

Two new possible terms and conditions which the court may impose under an access order have been added to the list in Clause 2(3). The first, in paragraph (c), allows for the imposition of a term relating to the persons who may undertake the carrying out of the works on the respondent's land. The second, in the concluding words of subsection (3), allows for the imposition of a term requiring a record to be made of the condition of the respondent's land for the purpose of facilitating the determination of any question that may arise concerning damage to that land.

The Law Commission recommends that no provisions should be included for the payment of compensation based on the enhanced value of the applicant's property arising from the access. The Bill has been amended to provide, in Clause 2(4), that an access order may include provision requiring the applicant to pay the respondent a "licence fee" for the privilege of entering the respondent's land. The court is directed to have regard to all the circumstances, including the likely financial advantage of the order to the applicant and the respondent. However, no licence fee is to be payable in the case of works to residential land.

The fourth point deals with persons bound by an access order. The original Bill provided for an access order to bind no one other than a party to the access proceedings. That provision was criticised on the ground that, if the respondent disposes of his interest or dies, the applicant would have to make a further application. That would be time-consuming and unnecessary in most cases. Clause 4 now provides that, in addition to the respondent, an access order is binding on his successors in title and any person with an estate or interest in, or right over, the land which was created after the making of the order and who derives his title under the respondent. Subject to the court's direction, such a person is entitled, as respects anything remaining to be done after the order becomes binding on him, to enforce the order as if he were the respondent. There are other, mainly drafting, changes which have been made in the original Bill with a view to clarifying the intention of the legislation.

A number of other questions were considered. There are six which I shall not go into in detail, but which it was not possible to accept. They were the identity of the applicant, the identity of the respondent, the question of discretion and certain comments about costs. It may be possible to raise those points in due course if we are fortunate enough to have a further discussion on the Bill at a later stage. In the meantime, I beg to move.

Moved, That the Bill be now read a second time —[Lord Murton of Lindisfarne.]

8.34 p.m.

Lord Wilberforce

My Lords, I am sure that the House will be grateful to the noble Lord, Lord Murton of Lindisfarne, for the care with which he has explained to your Lordships both this Bill and the original Bill. I appreciate his prudence, sagacity and courage in having withdrawn the previous Bill instead of trying to force it through the House at the end of a Session. That was a wise action and it now has the pleasant consequence that the re-presented Bill will go forward as the Murton Bill rather than bearing the name of a gentleman in another place.

The House will also wish to record its gratitude to the noble and learned Lord on the Woolsack and to his department and the draftsmen for the trouble that they have taken in amending the Bill so as to meet objections and preoccupations raised in our previous discussions. There is no doubt that a great deal of work has been put into the Bill. It is now a much better Bill and most of the difficulties have, I am sure, been met. Whether or not the Bill is further amended in our discussions here in Committee, one thing is certain; namely, that the House will be seen to have done its job as a revising chamber.

On the whole, the Bill is a desirable Bill. I have never taken any other view about it. My main comment, which I intend to give briefly, regards its complexity. The objective is simple; namely, to bring about good neighbourly conduct between owners of adjoining or adjacent premises. It erects a pretty formidable structure of legal obligations, precautions and qualifications, almost amounting to a code, with plentiful use of subjective phrases such as reasonable, fair and reasonable, substantial and so on, bringing householders into the courts and imposing on the courts a pretty complicated operation of taking into account and hearing evidence on all the matters which are so meticulously listed in the Bill; for example, whether an improvement is incidental to basic preservation work. That is quite a difficult question of fact.

For my part, so as to diminish the number of cases that would have to go to court, I confess that I should like to have seen that mitigated in one of two possible ways. It could be done by a notice procedure on the lines considered by the Law Commission. I shall not say any more about that because the noble Lord, Lord Mishcon, raised a point about it in our previous discussions, and he is the best person to bring that forward again if it is a possibility. Alternatively, it could be done in the form of a letter, such as was suggested by the noble Lord in introducing the Bill. An alternative way, which might diminish the number of court cases, would be to give the court power to appoint a court surveyor who would act on behalf of the court and settle details, preferably on the spot, between the parties.

However that may be, we have on the whole a pretty good Bill. We want to complete its passage in time so that it may get through the other place during the course of this parliamentary Session and, although there are some points which may require consideration, they are not very great points. Perhaps I may mention two of them briefly and summarily because they have been mentioned by the noble Lord and by others in the course of discussions.

The first is the question of compensation for inconvenience which is mentioned in Clause 2(4) of the Bill. Compensation may be given in certain cases, but not as regards residential land. That appears to reflect some pressure from the country landowners' interests and one must wonder whether it is justified.

The second point that may require some further discussion is that of costs not otherwise recoverable as costs. As I understand it, the Bill leaves the costs in the discretion of the judge. I wonder whether that is good enough or whether there should be an automatic right, as some noble Lords preferred, for the respondent to receive his costs unless he is found to have acted unreasonably.

Those points can be discussed in Committee. For my part, having congratulated all those concerned on bringing forward this revised Bill, I hope that it will be given a speedy passage in time for it to be passed into law during this parliamentary Session.

8.37 p.m.

Lord Coleraine

My Lords, I agree with the noble and learned Lord that the House should be indebted to my noble friend Lord Murton of Lindisfarne for having a second attempt to introduce a Bill on this subject within six months, and to my noble and learned friend the Lord Chancellor and his officials and the draftsmen for producing the new Bill and some full and informative Notes on Clauses.

The result is a much better Bill and, so far as I am aware, there is general agreement that that is so among those who have been able to express their views in the time available since the Bill was introduced. I should like also to thank my noble and learned friend for the consultations that he has carried out in preparing the new Bill and for seeing me.

I understand that there is a wish to have the Committee stage of the Bill completed and everything agreed, if possible, before we rise for Christmas. Although I am not sure that that would be the best way of dealing with complicated and innovative legislation, I certainly understand why we might wish to proceed in that way. In a personal effort to ease the passage of the Bill, perhaps I may propose to raise a number of points, including those raised with me by outside interests, which might in other circumstances be better left to be dealt with by amendments in Committee.

Doing it that way would enable any amendments that might be agreed to be necessary to be properly drafted and to be moved by my noble friend in Committee. That would surely be time-saving. After all, I have already made a Second Reading speech in support of what I considered to be the principal benefit of the Bill; that is to say, the provision of relief for the owner of a house which may otherwise suffer years of neglect and eventually have to be demolished solely because the common law does not permit the owner to go on to his neighbour's land and carry out the necessary repairs to the house from that land.

Unlike the noble and learned Lord, Lord Wilberforce, I particularly welcome Clause 2(4) which provides for a wayleave payment to be made for access except in the case where and to the extent that the applicant wants to carry out works to residential land. That would correct what in my opinion was one of the two most serious flaws in the earlier Bill, which was very wide ranging and introduced in what seemed to me to be a quite unsatisfactory way the concept that the owner of land should not normally be permitted to turn his ownership to profit except in cases in which he was not inconvenienced by the way in which somebody else might wish to use his land.

Nevertheless, there are difficulties about the provision which is now in the Bill. First, Clause 2(6) provides that where a building includes a dwelling the phrase "residential land" includes: any external part of the building which adjoins or is adjacent to [the dwelling]". In that way it seems to me that 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. I should perhaps note that under the definition the dwelling does not need to be occupied as a dwelling.

It seems to me also that further difficulties may arise as to who is to receive the payment for access and also the compensatory payments provided for in Clause 2(3) (f). That is because of some lack of clarity in the Bill as to who is to be the respondent in an application and the quite separate possibility provided by the Bill of compensation falling to be paid to someone who is not a respondent.

An article in the Estates Gazette on 21st September commented on the earlier Bill. In that article Professor J. E. Adams noted the absence of any power to supplement details by ministerial order. I take the point a little further and make the suggestion to my noble friend that there might be a case for the insertion in the Bill of a clause allowing the Lord Chancellor limited powers to amend the Bill by statutory instrument.

As a private Member at this particular time, I find myself surprised at making the suggestion. Nevertheless, I believe that there are points on which the drafting may be unclear and lead to unnecessary litigation. I have just indicated where I think that the drafting of the Bill may produce no payment for access in a situation in which one would have expected payment to be made. It would be a pity if putting right small defects in the Act had to await the opportunity for primary legislation. A case in point to which I have drawn the attention of my noble and learned friend, as I have done on some other points, is the question of whether the Bill is apt to deal with the case where the applicant merely wants the right to cross his neighbour's land and will be carrying out all the works on and from his own land.

I turn now to the one remaining point where I feel that something serious is lacking, whether in the Bill or outside it. Without some special arrangement for the costs of the application, in my view the Act will be found to be seriously flawed and will be in danger of proving to be a considerable embarrassment. But before I go into the matter of costs, I should like to comment on my noble friend's reference to the provisions in the Bill which would allow the court to make an order for the payment of the respondent's expenses before the application is made.

What is envisaged under that provision of the Bill is that in the course of negotiations a respondent or a potential respondent will have to employ a solicitor, and possibly a surveyor, to examine the facts which would allow his neighbour to come on to his land and to form a judgment as to whether, under the Act, an access order would be made if applied for. It is envisaged that the solicitor or the party negotiating with his neighbour would say to his neighbour: "I shall consent to the order in these terms, provided that you agree to pay my expenses. If you do not agree to pay my expenses, I shall make what is called a Calderbank order. I shall make you an offer, without prejudice as to costs, that I shall accept your proposals for access, but only if you pay my preliminary expenses."

I think that I should have to agree that with some minor amendments to the county court rules to cover that type of Calderbank order, this clause of the Bill, about which I have in the past expressed reservations, might well be useful and get agreement on access orders without the need to resort to the courts.

But on the question of costs generally, someone who uses the Act will definitely obtain a very significant advantage, including financial advantage from his right of access over his neighbour's land. At best the neighbour will obtain no benefit at all and in many cases will be put to expense and suffer considerable uncompensated inconvenience. I suggest to my noble friend and to my noble and learned friend that the Act will be perceived as unfair and repugnant if further and better provision is not made to ensure that so far as possible the neighbour who has acted reasonably is, at the very least, not out of pocket as a result of being privileged to allow an adjoining owner to trample over his land.

One way of doing that would be to provide that the costs of the application are to be paid by the applicant except where the respondent has acted unreasonably. Reference has already been made to that point. I tabled an amendment to the earlier Bill to that effect. The noble Lord, Lord Mishcon, also put his name to that amendment. It did not fall to be considered and I shall listen with interest to what the noble Lord, Lord Mishcon, has to say on the matter today as well as to the comments of my noble and learned friend.

I should add that wide unease was expressed in response to the consultations by the Law Commission nearly 10 years ago and the response to the Bills in recent months—unease at the fact that the respondent should have to pay for the applicant's pleasures. I do not propose to continue with that particular point in this debate except to make one reference to the notes on clauses. On the question of costs, the notes comment that: The normal costs rules would apply: that is to say, the court has a discretion to make any award of costs it feels is appropriate in the circumstances of the case, and thus may make an award which does not follow the outcome". I believe that there is an element of legal-speak in the reference to the "discretion" of the court. As I understand the matter, it is not a true discretion to be exercised by any judge in any way that his discretion leads him. I understand that it is only in certain exceptional and fairly closely defined cases that the court exercises its discretion to depart from the normal rule that costs follow the event. So, where an access order is made it will be rare indeed for the respondent to have his costs paid by the applicant.

I have tried to be good, to be brief and to keep a tight rein on any impulse that I might feel to give full vent to my known interest in the more recondite corners of property law. However, before I conclude there are some less thorny points to which I wish briefly to draw attention.

First, on the question of payment for access, I believe that the drafting of the two heads of the formula in Clause 2(5) for calculating the financial advantage of an order also allows a measure of double counting which may operate unfairly against applicants. Taking as an example a case where repairs to land worth £1,000 would cost £600 without the order, and £200 with the order, the land would be worth £1,200 with the work carried out. The formula would produce financial advantage of £400 under the head of cost saving, plus £200 under the head of increasing value, making a total of £600. My instinct tells me that the financial advantage is not the sum of the two heads but the higher of them—£400.

I have heard from valuers that the phrase "just and reasonable" referred to in Clause 2(4) in relation to the payment to be made for access is not well recognised by those involved in valuations at the sharp end. "Fair and reasonable" is the measure that I would have expected. I should be grateful if my noble and learned friend would explain whether there is any significance in the use of the word "just".

I have also been advised of the worry of the Association of British Insurers that there should be early recognition of difficulties which may arise when a court, when making an access order, imposes provisions under Clause 2(3) (e), with respect to, the taking out of insurance cover by the applicant against any such risks as may be so specified". The association has pointed out that appropriate cover is not at present normally available under public liability or household policies, and that that is likely to remain the case notwithstanding the passage of the Act. I ask my noble and learned friend whether it will be possible for the insurance industry to consult about the insurance implications of the Bill in the hope that that could lead to the promulgation of appropriate guidelines for the benefit of the courts and practitioners. I ask my noble and learned friend one question on insurance. If insurance cover proves impossible to obtain, will it be possible to satisfy the requirements of the subsection by the provision of a guarantee or bond to meet the potential liability?

I welcome the provisions of Clause 4, which provide that an access order shall bind the respondent's successor in title to the servient land as well as persons who derive their interest under the respondent and whose interest has been created after the making of the order. That follows the terms of an amendment to which my name was attached. However, I wonder now whether the provision goes far enough and whether anyone who has acquired a derivative interest from the respondent after the date of the making of the application should not also be bound. The difficulty that I envisage is that the respondent may receive the papers for the application from the court. He may then find it possible and convenient to sublet a potato patch to his son-in-law at the strategic point which would impede the eventual operation of the access order. It may be that the Bill has that effect in ways which I do not understand. However, if it does not, I should have thought that consideration should be given to a further amendment.

My final point relates to Clause 4(4). Again it is a small point. The provision prohibits contracting out of the Act. I am not completely convinced that there are not circumstances in which it would be reasonable to allow someone to contract out of the Act. However, if contracting out is planned, the ban should be effective. I ask my noble and learned friend whether it might not be clearer if the agreement which was made void was an agreement not to obtain an access order rather than an agreement not to apply for one.

The Bill deserves speedy passage through your Lordships' House. I support its Second Reading today.

8.55 p.m.

Lord Mishcon

My Lords, if ever proof were needed that your Lordships' House was necessary as a revising Chamber, it has been given tonight when at a late hour, and in a learned if sparse House, the clauses of the Bill have been considered, and the Bill's purposes so eloquently and clearly introduced by the noble Lord, Lord Murton, who also entertained us on the last occasion with his original Bill brought from the Commons.

I well remember the noble and learned Lord, Lord Wilberforce, in his speech on Second Reading, calling attention to the fact that the Bill presented in another place went through on the nod on a Friday without one single person addressing any remark to the House. That was so in spite of the fact that a situation in law, which has existed for centuries, was being altered by Parliament. Throughout the centuries such an order would be trespass. Throughout the centuries it would not be possible to go to a court and obtain an order such as is envisaged by this Act. If I remember aright, the noble and learned Lord referred to that old phrase of an Englishman's home being his castle. He wondered whether the castle had not in some way been invaded by the provisions of the Bill.

This House has taken its role very seriously. The points raised have been extremely interesting. The noble Lord, Lord Coleraine, was absolutely right: because of the peculiar circumstances of the Committee stage possibly having to be completed before Christmas, he said very properly that at Second Reading it would be sensible if notice were given of points that might be raised at Committee stage so that those in charge of the Bill would have adequate notice.

I have some such points to make. I wish to limit them to points of some considerable weight—I would not in all modesty say that they had more than that—which have not been raised by other speakers. I begin with what I consider to be an important point and the noble and learned Lord, Lord Wilberforce, was courteous enough to mention my name in connection with it. If noble Lords consider Clause 1(1) (b) of the Bill which has as its purpose, I hope, the ironing out of differences which may exist between neighbours, it states that a person, who needs, but does not have, the consent of some other person to that entry, may make an application to the court for an order". There is no provision that there has to be a prior application, or that there has to be some notice served such as might be set out conveniently in a schedule to the Bill. As it is worded at present, anybody can say, "I need a consent. I have not got it in my pocket. I am going to the court."

Therefore, the first point which I raise is that however selfish lawyers may be accused of being, in this House of all Houses we do not wish to push people into courts of law when that could be avoided and when they should be good neighbours. Immediately I ask whether or not there should be a provision that where consent has been applied for by a proper notice being served and that consent is not forthcoming for good or bad reason, then when a person needs that consent, he can apply to the court. It is important that the Bill should provide for the letter before action, or a notice, or a provision, which makes it quite clear that a friendly, reasonable and civilised approach should be made before either the parties are forced into a court of law or busy courts of law are forced to deal with situations which they may otherwise not need to face.

The next matter at which I looked was Clause 1(3) which states: The court shall not make an … order in any case where it is satisfied that, were it to make such an order, the respondent or any other person would suffer interference with, or disturbance of, his use or enjoyment of the servient land". In connection with that I noticed that Clause 1(2) directs the court to make an order if the conditions in that subsection are satisfied. Therefore, the only exception to the mandatory effect of subsection (2) is the question raised in subsection (3) of somebody suffering interference with, or disturbance of, his use or enjoyment of servient land.

What about a person who is ill and in particular who is suffering from a nervous complaint where, indeed, the question of noise has an extremely deleterious effect on health? That has nothing to do with enjoyment or interference as regards land, but it has something to do with the condition of an individual which, I repeat, has nothing to do with his ownership or enjoyment of land.

The Bill states that the court "shall make an order". Should we not alter that "shall", knowing that courts are, by and large, very wise, to make it permissive so that the court "may" make an order. If that is done, all those points can be taken into consideration. If it is made mandatory, should we not look extremely carefully at the wording of subsection (3) which is the only way in which a court can say to itself, "I will not make this order in spite of the fact that it is mandatory. In my view it does not cover enough exceptions".

The noble Lord, Lord Coleraine, has already raised questions which arise under Clause 2(3) (e). I, too, studied the letter from the association dealing with insurers and saw the warning that there may be grave difficulties in regard to the courts enforcing a proper and effective insurance clause in any condition which may be put into the order. Because the noble Lord, Lord Coleraine, wanted to spare us a longer speech, there were matters in that letter which he did not mention. I shall abbreviate them, but the letter points out how frequently insurance policy clauses can be breached. That gives the right to the insurance company to say that it is no longer liable. As the noble Lord, Lord Coleraine, said, the court may not be as wise and experienced in those matters as it would be in matters of law. Therefore it is important that the insurers should be consulted. The Association of British Insurers should be consulted in order that appropriate guidelines can be given to the court.

I cannot understand—and this may be my fault—what is said in Clause 2(4) where there is provision for payment in respect of a financial advantage and in respect of the degree of inconvenience likely to be caused. If one mentions inconvenience, especially in subsection (4), I should have thought that a court might take it for granted that inconvenience was not included in the previous provisions which deal with loss or damage because one has sorted out what one has provided for in the Bill by inconvenience.

If that is so, one can obtain no payment for inconvenience in regard to works which the applicant desires to carry out by means of the entry where the works concern residential land. As the noble Lord, Lord Coleraine, pointed out but in a different context, if one looks at the provisions in subsection (6) as regards what is meant in the Bill by "residential land", one sees that it covers anything relating to a dwelling. For the purpose of the point that I wish to make, I shall simplify that by saying that it is limited to matters affecting a dwelling.

All the examples which the noble Lord, Lord Murton, pointed out were in regard to houses. All the discussion which has taken place in your Lordships' House relates to residential property. Some residential property here is extensive, expensive and luxurious. Are we saying that there shall be no compensation for inconvenience? All the points we discussed and the examples we were given relate to residences. All the inconvenience in the world may be suffered by somebody, but presumably there will not be the liability to pay compensation. I ask myself whether that can be right. In answering myself I say, no.

One point was raised by the noble Lord, Lord Coleraine, in admiration—rightly so—of the revised Bill. From this side of the House I thank him again, as did the noble and learned Lord, Lord Wilberforce, for the wisdom he exercised in those revisions, no doubt with the help of the worthy noble and learned Lord the Lord Chancellor. The noble Lord, Lord Coleraine, pointed out how glad he was to see the extension of the order to subsequent acquirers of the property which would be the object of the order. That is all very well, but some conveyancers take the view that there is a difficulty in that regard. If the order happens to be subsisting at the time when a transfer of property takes place, what of the lot of the poor purchaser who knows nothing about it? Nothing is said in the Bill about such an order being registrable, as it obviously should be. That point was raised at a high level not only with the Law Society, but also, if my information is correct, by a member of the Law Commission.

The Bill should provide that in those circumstances the order is registrable. It perhaps can be registered as a pending land action, as a writ or as an order. But I am advised by experts in the field that there is no certainty about it. One wonders therefore whether the order should be registrable.

As has been said by all the participants in the debate on this Second Reading, it is a worthy and necessary Bill. I hope that in its final stages it will make it evident that at all events your Lordships' House does not wish to drive people into the courts, but that we want them to have all the proper notices and warnings to keep them out of court so that a civilised consent can be obtained in the circumstances we envisage. If the Bill is an alteration in the law, after centuries which have not found it necessary, then I feel that we all believe it to be a necessary principle that we are carrying out in this Second Reading debate. We on this side of the House support the Bill.

9.11 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I should like to join those who congratulated my noble friend Lord Murton of Lindisfarne for bringing forward the previous Bill, for considering the points made about it and for the wisdom of the course he took in deferring consideration of those matters until this parliamentary Session. That gave him as well as others the opportunity to reconsider some of the issues raised.

As my noble friend said, the Bill arose from work done by the Law Commission and, as originally presented, was the Law Commission's Bill. I intimated on behalf of the Government that we accepted the policy of the Law Commission Bill. When it appeared to one of my honourable friends in another place that it would be helpful in a specific case, it was natural that he should desire to put the Bill forward as the only way of dealing with that constituency problem. The consideration given to both the previous Bill and this one improved the proposals, although in so doing we departed to some extent from the policy adopted by the Law Commission—not in essential matters but in matters of detail.

Like my noble and learned friend Lord Wilberforce, I should like to have seen a simpler Bill which achieved the same purpose but with less elaboration. The more I listened to the debate the more I concluded that that is an elusive object if one wants to achieve this simple purpose. Many of the points raised are acknowledged to be Committee points. My noble friend Lord Murton of Lindisfarne will wish to consider them. I am ready to offer him any help that we can give both in consideration of those matters and in the drafting of any amendments that in his view may be necessary if some of those points need to be made.

Perhaps I may make one or two comments on some of the points. I do not wish to detain your Lordships unduly by talking about them all. The first point about the order in the Bill is that made by the noble Lord, Lord Mishcon, and supported in advance by my noble and learned friend Lord Wilberforce, that some form of notice or letter before action should be a condition. Something of that kind might be extremely reasonable. I had thought that that might be done by procedural rules which the rules of court have power to lay down. That would enable us to give some flexibility to the precise requirement.

There may be a great deal to be said for making the requirement fairly precise so that the respondent to the application may know exactly what was wanted. Simply making a provision such as the noble Lord, Lord Mishcon, mentioned might lead to some difficulty. I know that one of the points behind this form of words was that it may sometimes be very difficult to know from whom consent is to be obtained. The recent opening of the land register may help solve that matter, but it would not resolve the point altogether.

Lord Mishcon

My Lords, I am very grateful to the noble and learned Lord for giving way. This is rather an important point since the whole idea of the Bill is to make for civilised relationships between neighbours. If there is any difficulty in this connection in finding out from whom the consent is to be obtained, it will be equally impossible or difficult to find out who the respondent should be to the application for the order.

The Lord Chancellor

My Lords, that is so. There is always the possibility of altering that as one goes ahead through the procedure. If the failure to notify the right person at the beginning undercuts the whole procedure on which one has embarked, it makes it unnecessarily complicated. Let us suppose that I thought that A was the owner and I served a notice on A and then, by the time that I reached a later stage of the procedure, A had parted with the property perhaps in the manner that my noble friend Lord Coleraine suggested, of a potato patch stretched to a son-in-law, then I had not asked that person for consent. If that emerged in the course of the application, the result would be that if something of the kind that the noble Lord, Lord Mishcon, mentioned was at the root of the matter, I would have to start all over again. I suspect that a really ingenious person, well advised, might make it very difficult to start at all. There are dangers although I entirely appreciate the point that the noble Lord made.

As regards the general point raised about insurance, your Lordships can certainly take it that I would wish to consult with the Association of British Insurers before making a commencement order which is provided for in the Bill. The subsidiary point made by the noble Lord, Lord Coleraine, is met by the provision in Clause 2(8) (b) which allows the court to make provision, for the giving of security by the applicant for any sum that might become payable to the respondent or any other person by virtue of this section or section 3 below". In other words, some other method of providing for compensation could be that if it were necessary.

One of the points made to my noble friend and myself in the interregnum was that if this measure is being used for what I might call ordinary residential purposes, it would be reasonable enough that that should be done on the basis of compensation for loss. However, if it were a more major project, such as a forestry enterprise or something of that nature which the Bill covers, then it would be right that the person getting the entry should make some form of licence payment.

The answer to what the noble Lord, Lord Mishcon, had to say about that is that the consideration for the privilege of entry in the form of a payment is something over and above compensation for loss. Compensation for loss could include inconvenience, but inconvenience could also be a factor in the licence payment. As regards that licence payment, my noble friend Lord Coleraine raised the point of double counting. The whole formula is built in such a way that these are circumstances to which the court has to have regard. I would expect the court not to be very amenable towards allowing double counting.

Clause 4 has been altered in the way that my noble friend Lord Coleraine mentioned very much as a result of the comments he made. He has elaborated these to bring forward another possibility this evening. I am grateful for the point raised about the registration of such an order. I think we had assumed that this could be registered, but I shall certainly consider the matter with my technical advisers. No doubt my noble friend Lord Murton will be interested in hearing what they have to say about whether we should have a specific provision about that. If there is a provision about that, then there should also be a provision about agreements having the same effect.

My noble friend Lord Coleraine raised a question about access to land for the purpose of getting to other land without anything else happening—a mere entry to cross the servient land. At the moment we hold the view that Clause 7(1) has that effect, but I shall certainly reconsider the matter in the light of what my noble friend has said.

My noble and learned friend Lord Wilberforce raised the question of the possibility of a court using a surveyor to go to the place and setting all the points there and then. I hope that such a procedure might be possible and I shall be glad to have an opportunity of considering whether, for example, rules could go some distance towards that. I suppose the ultimate decision, if there was a dispute, would possibly have to be made by the court, but I shall be glad to consider whether we can deal with that.

Those are the main matters of substance which have been raised. As I said, I shall be very happy to consider these further and to give any help to my noble friend in connection with them which he may feel he would like to have. I am sure we should all like to see these cases being dealt with. There are quite a number of cases such as my noble friend mentioned of householders who are in real difficulties. This is not a new problem but the Law Commission has now addressed it. There has been very thorough examination. We have the benefit of the Law Commission's work and we have the benefit of your Lordships' views. I hope that we should be able to move fairly speedily now to provide the people who really need it with the remedy that they require. I am happy on behalf of the Government to support this Bill.

9.22 p.m.

Lord Murton of Lindisfarne

My Lords, I should like to thank those noble Lords who have taken part in this debate. It has been a very serious discussion on what I consider to be a very serious matter. The more I have listened, the more I realise that it is not only serious but it has certain complexities. On the other hand, I am hopeful that as it was a Law Commission report in the first place, we may be able to come to an agreement eventually in revising it so that eventually it could reach the statute book.

I am most grateful to the noble and learned Lord, Lord Wilberforce, for his comments. He is quite right, it is a complex issue. My noble friend Lord Coleraine has gone very deeply into this matter. He knows a great deal about things that I do not know; and we know the noble Lord, Lord Mishcon, knows a lot as well on these legal matters.

I should like to thank my noble and learned friend the Lord Chancellor for the help which he has given personally and the encouragement which he has given to me in endeavouring to carry this Bill through, and also to his department and counsel for what they have done in redrafting the original Bill. I hope with the good will that has been shown this evening that we may succeed, and that your Lordships will agree that this Bill be now be given a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.