HL Deb 26 February 1992 vol 536 cc346-8

8.6 p.m.

Report received.

Clause 2 [Terms and conditions of access orders]:

Lord Murton of Lindisfarne moved the Amendment: Page 3, leave out lines 37 to 45 and insert— ("( ) An access order may also impose terms and conditions—

  1. (a) requiring the applicant to pay, or to secure that such person connected with him as may be specified in the order pays, compensation for—
    1. (i) any loss, damage or injury, or
    2. (ii) any substantial loss of privacy or other substantial inconvenience, which will, or might, be caused to the respondent or any other person by reason of the entry authorised by the order;
  2. (b) requiring the applicant to secure that he, or such person connected with him as may be specified in the order, is insured against any such risks as may be so specified; or
  3. (c) requiring such a record to be made of the condition of the servient land, or of such part of it as may be so specified, as the court may consider expedient with a view to facilitating the determination of any question that may arise concerning damage to that land.").

The noble Lord said: My Lords, the main purpose of the amendment is to extend the scope of the compensation provisions in the Bill so as to improve payment to the respondent of compensation for substantial loss of privacy or other substantial inconvenience. At the same time it improves the drafting of Clause 2 of the Bill.

The amendment provides for a new subsection to replace paragraphs (e) and (f) in Clause 2(3) and the concluding words of that subsection. That improves the drafting because those provisions do not fit very well under the opening words of Clause 2(3). They are not terms and conditions which may be imposed under subsection (2); that is, for the purpose of avoiding or restricting loss, damage, inconvenience and so forth.

The House will recall that at Committee stage the noble Lord, Lord Mishcon—supported by my noble friend Lord Coleraine and the noble Lord, Lord Monson—argued strongly for the inclusion of a provision in the Bill for the payment of 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".—[Official Report, 13/2/92; col. 888.]

The noble and learned Lord the Lord Chancellor gave an undertaking that he and I would consider the matter. Following further discussion of the question in the interval since Committee stage, it now seems to me to be right—and I believe that my noble and learned friend agrees—that the respondent who suffers, or who is likely to suffer, substantial inconvenience should be compensated.

It is not intended to permit the courts to award compensation for inconvenience and loss of privacy in all cases. I would be worried if respondents were led to expect to be paid a sum of money under this head in every case. There are degrees of inconvenience and of loss of privacy. Where the inconvenience or loss of privacy caused by the entry is likely to be sufficiently substantial, it would be an appropriate matter for compensation. I am grateful to the noble Lord, Lord Mishcon, for raising the matter in the first place and for pursuing it with his customary courtesy and vigour.

It may be helpful for me to mention other changes which will be made by the amendment. Paragraph (a) now provides the alternative of the securing of payment by the applicant rather than the simple payment by him. The point is that the applicant may be, relatively speaking, a man of straw; for example, a building contractor who is handling the business with the landowner. It is necessary to be sure that the conditions as to payment and insurance are effective. Paragraph (b), which deals with insurance, is also amended so that the applicant must secure insurance. I beg to move.

Lord Mishcon

My Lords, the noble Lord, Lord Murton of Lindisfarne, was good enough to ascribe the adjective "courteous" to me. I want to say at once that it is I who have been the recipient of courtesy and understanding both from him and the noble and learned Lord the Lord Chancellor. I tried to wring the hearts of Members of the Committee when I asked them to imagine the occupant of a little house treasuring his garden and hoping so much that he would be able to enjoy it when the occasional sun shone upon this land of ours, only to find that an order had been made which enabled builders to come onto his premises, occupy his garden during working hours, bring machinery there, and ruin his privacy and certainly his convenience in trying to enjoy that garden.

I saw at once that the noble Lord, Lord Murton, was moved by that, as one would expect him to be. I found that, even in the heart of the noble and learned Lord the Lord Chancellor, which is always a substantial and warm one, I had struck a chord of sympathy. He has been courteous enough to write to me in the intervening period and to allow me to see him in order that suitable words might be put into the Bill so that not only are loss of privacy and convenience, if substantial, remedied to some extent by the terms and conditions which the court can impose by an earlier subsection of this clause, but also if inconvenience or loss of privacy is substantial, compensation can be paid.

I was perfectly satisfied with the wording that merely altered the subsection to cover that point. I readily recognise that the opportunity has been so sensibly taken of redrawing the whole of the subsection in order to make it a very much better and worthwhile clause. I very much hope that when this Bill goes elsewhere, as it certainly will do at an early stage, it will have the sympathy of the other House as a Bill which looks after the little man whom I mentioned to your Lordships at Committee stage.

Noble Lords may have noticed that I am being rather more long-winded than I normally am. The reason is that I was hoping that a colleague of mine would find her way to the Front Bench in time for the next matter which your Lordships may be dealing with. However, I believe that I have taxed the patience of noble Lords quite sufficiently. Therefore, I close with a repetition of my words of appreciation to the noble Lord and to the noble and learned Lord on the Woolsack, as well as to those who supported me on the previous occasion. In those words of thanks I naturally include my colleague, the noble Lord, Lord Coleraine.

Lord Coleraine

My Lords, I would like to help the noble Lord opposite and join with him in welcoming this amendment moved by my noble friend. He also warmed my heart in Committee, as he knows, especially because the amendment to which he was speaking when he drew the Committee's attention to the point which has now been rectified, was an amendment which I would have felt bound to oppose. I was delighted to find that he did not wish to speak to the amendment, but was raising the point which we are now considering.

The Law Commission was not very anxious that compensation should be allowed in these cases. Its reason was that it wished that the courts should not be troubled with small claims for small matters of inconvenience. That was a matter which my noble friend touched on in introducing his amendment. I go along with that. I hope that the use of the word "substantial" in relation to loss of privacy or other substantial inconvenience, will have the effect of providing that the inconvenience which one might call a "£100 inconvenience" is not compensated, but that the courts will give compensation for what I might call a "£500 inconvenience". I hope that that will be the result of this amendment.

8.15 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, on behalf of the Government I support this amendment very much indeed. I believe that we have managed to achieve, on the one hand, the kind of protection for people suffering inconvenience which the noble Lord, Lord Mishcon, wished to achieve, and, on the other hand, at the same time we have managed to avoid the difficulty which moved the Law Commission to suggest that inconvenience should not be taken into account in that the courts might be faced with rather small claims. The advice that we have from parliamentary counsel is that the use of the word "substantial" might achieve that. I believe that it has. I would like to thank my noble friend and the noble Lord, Lord Mishcon, for the help that they have given me in reaching this extremely sensible solution. I hope that the Bill will proceed quite quickly through its remaining stages.

On Question, amendment agreed to.