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Property Boundaries (Resolution of Disputes) Bill [HL]

Volume 764: debated on Friday 11 September 2015

Second Reading

Moved by

My Lords, in outlining the Bill’s purposes, I have a particular interest to declare. First, I am a practising chartered surveyor, with involvement in the realms of boundary, title and party-wall matters. I chair my profession’s specialist panel in this area, and together we produce guidance notes for members. I am also a property owner—although, thankfully, without any current boundary disputes.

I must express my thanks and appreciation to a number of people, and first to Charlie Elphicke MP, whose original Bill was introduced in another place in 2012, which started all this rolling. I am most grateful to him for his advice and support. Secondly, I thank the group of what I might describe as the top five professional boundary practitioners, under the leadership of Andrew Schofield, FRICS, who took that earlier Bill away and substantially reworked it to produce the document before us today. I particularly single out Mr Schofield because he has been my adviser, mentor and supporter on many of the technical issues relating to this Bill. Thirdly, I must thank the staff of the Public Bill Office for their unfailing assistance and courtesy. Their help with preparing the Explanatory Notes has been frankly beyond price. Perhaps I should also thank Lady Luck, who has favoured my entry in the ballot, enabling me to introduce this Bill.

I also thank the Minister and his department for being ready to listen, even if they do not entirely buy the reasons why this Bill is needed, and, not least, I thank the Minister’s officials for meeting me yesterday at short notice. I note with appreciation and satisfaction the support of my professional body, the Royal Institution of Chartered Surveyors, and, in particular, I thank Mr Martin Burns of the RICS for his advice and encouragement. I thank the Pyramus & Thisbe Club, a learned society, mainly of surveyors but of other professions as well, which has a particular interest in this matter. It so happens that I am a member of that club. A number of individuals showed a positive interest in this. Finally, I express my fondest thanks to my wife for her patience about all the late nights when I have been dealing with this thing and have come home from the office or from this House late in the evening.

I look forward to the comments of the noble Earl, Lord Kinnoull. His late father was a great supporter of the Party Wall etc. Act, which I had the privilege of taking through your Lordships’ House in 1995-96. I very much look forward to what he has to say and to hearing the noble Baroness, Lady Gardner of Parkes, who has such extensive knowledge of the residential world, its foibles and its areas of conflict.

The fundamental premise behind this Bill is the undeniable fact that boundary issues are a matter of technical complexity and, as such, are most amenable to scrutiny by technicians first and foremost and to legal overview as a second stage. This Bill is intended to be in tune with the general direction of policy to reduce conflicts and provide alternative non-judicial means of resolving disputes. This is the broader public interest hook on which the Bill hangs. I know that the Minister and his department are very much aware of this. I hope he does not feel that I am trying to force the pace by this Bill having its Second Reading today; it just so happens that it is the date I was offered.

Any consideration of property boundaries brings with it considerations of title, but title is a legal construct based on the documentary and other paper evidence and in many cases is now registered at the Land Registry. However, on the ground, the proper interpretation of these factors is a matter of observation, identification, physical facts, measurement and cartographic or other documentary interpretation. This is a surveying task. For what is shown by a line on the registered title plan—plotted, as it is, on to a Ordnance Survey plan base—at best denotes the presence of a feature that a cartographer believed to be in the position shown, but it is entirely silent about what that feature is on the ground. Moreover, Ordnance Survey has a standard disclaimer that a line on a map does not reflect a legal boundary, just as the Land Registry has a standard proviso that the title plan accords with what is known as the general boundary rule. This rule ultimately boils down to little more than a plan for identification purposes, though invariably this is ignored by owners, who believe the title plan is to be taken literally. Therein lies part of the problem.

One may be lucky as a practitioner and find a more accurate pre-registration deed plan lurking somewhere, but one quickly runs into the legacy of hand-drawn or traced plans, plans not to scale, or plans defaced with overzealous outlining, subsequently photocopied and then re-coloured. This is a legacy issue, an historic failing of those involved with conveyancing at a time when, I am afraid to say, precise boundaries did not matter that much. Now, with more intensive uses of land, competing neighbour aspirations and high property values, it does matter, and often it matters very much indeed.

Practitioners, the judiciary, the professions, local government and public bodies all agree that boundary disputes are toxic. Evidence from Citizens Advice in correspondence with me reveals that last year it dealt with around 3,600 inquiries in England and Wales. Practitioners believe that with the cases they handle, usually via solicitors, the total may be in excess of 5,000 per annum, but I admit that no accurate records are kept. One well-known specialist practitioner recently advised that additional staff had just been taken on to deal with the increasing workload. Other practitioners share the view that the problem is growing.

Although there is, of course, access to forms of alternative dispute resolution, such as mediation, arbitration or adjudication, the parties to a property boundary dispute can very seldom be compelled to use them and even less to honour the spirit of the process. Furthermore, for voluntary ADR to work, it needs to be in the common and reasonably balanced interests of the respective parties—often even for voluntary agreement on the process to be reached, let alone on being bound by the outcome. There is seldom the necessary convergence of financial strength, commonality of motives or intended outcomes to make this a reality. Sadly, owners of property can be very defensive about boundary issues, which are often tied up with other matters: pets, trees, children, lifestyles, poor living conditions, poverty and maybe racial or cultural differences. Bad or uncertain title can be added to that rather heady mix.

The fact that it is difficult, expensive and, in terms of disposing of property, a serious barrier to transactions means that there are abuses, with some owners apparently wilfully ignoring the mores of polite society and being prepared to chance it to see what they can get away with or just in total denial that they might be in the wrong. A neighbour, realising that the defence of their property carries a high tariff, has to either accept the incursion or fight it to the bitter end.

Once parties start down the road of litigation, it very quickly becomes impossible to reverse the process because of the rapidly accumulating costs. These costs can quickly overtake the original issue to become the real bone of contention, and frequently dwarf many times over the economic value of the disputed land. I am inclined to give clients a bit of advice that the ferocity with which boundary disputes are pursued is in inverse proportion to the value of the land in question, and after many years I have no reason to resile from that advice. Because of the effects on transacting property subject to a dispute—effectively it is a block on being able to dispose of it—there is no retreat: a conclusion must be reached some way or other.

Practitioners’ experience is that a boundary dispute that goes to court is likely to cost on average in excess of £100,000. When coupled with the costs of the winning party, this can be ruinous for the loser, and most specialist practitioners are aware of cases where a party has been forced to sell their property to meet the bills. While it is, of course, a free world in which a fool and his money may be deemed to take their chance or be parted, I submit that it is also the duty of public law and administration to have such measures in place as will reduce, if not completely protect citizens from, such activity, if not their folly.

We also know that the civil courts cannot cope with present workloads and have been described in some quarters as sclerotic. Boundary cases in the courts typically take years to reach a conclusion. I think it was David Powell, FRICS, a well-known practitioner and technical author, who once remarked that when meeting a new client on a boundary case, he would warn that such disputes can be hugely expensive, so much so that for the same money one could have a very good family holiday in some delightful foreign spot or even construct a swimming pool in the back garden. He then added that the majority of clients ignored his advice, which is why he enjoyed many foreign holidays and had a large swimming pool. I give that as an anecdote. Citizens Advice’s recent email to me observed that many of its cases relating to planning also have a boundary element but are not included in its boundary inquiry figures. It is often in the planning and construction of home extensions that the need to know a boundary position with precision is most pressing. The definition of “title” has not kept up with this, or with advances in measurement and positional accuracy.

The views of the judiciary in some high-profile cases have been quite illuminating. In the case of Moncrieff v Jameson before the House of Lords in 2007, the noble and learned Lord, Lord Scott of Foscote, noted the regrettable and surely unnecessary falling out of neighbours who had lived in amity for many years. Lord Justice Sedley, in the Court of Appeal case of Strachey v Ramage in 2008, similarly observed how defective conveyancing has led to war being unnecessarily declared between neighbours, with costs that vastly exceeded the value of the land. The 1997 court case of Alan Wibberley Building Ltd v Insley induced Lord Justice Ward to lament the dread with which judges would greet the label “boundary dispute”. Later, in the same case before the House of lords, Lord Hoffman referred to them as a particularly painful form of litigation, with disproportionate amounts of money spent and claims often involving small and valueless pieces of land but,

“pressed with the zeal of Fortinbras’s army”.

So the Bill, or at any rate its principle, has the support of several key sectors. I suggest that it would have the following advantages. It would restrict occasions of conflict; reduce costs; lower the burdens on the courts; give greater certainty of outcomes; substantially reduce timeframes for resolution; provide a determinative conclusion; and retain ultimate redress on matters of law to the courts. It would also do the same for easements and rights of way. However, being based on the construct of existing land entitlement, it would not address or determine adverse possession cases, though it might clarify just how much of the possession was actually adverse. It seems to me that if the boundary is uncertain, you cannot log the degree of your adverse possession. As I said earlier, though, it is in line with the general thrust of public policy, which I know to be espoused by the Minister: that these cases should be kept out of the courts at all costs. It is a public interest issue of a pressing and apparent nature, and I believe that it can no longer be ignored.

The Bill is in effect largely enabling legislation, empowering the Secretary of State to make orders governing much of the finer detail. This is deliberate. The power is confined within the Bill’s purposes, so it would not afford a wider power—even less a Henry VIII provision—but it provides for future flexibility. It provides for boundary dispute cases to be referred to technical experts first, rather than to litigators. It would intercept certain existing cases before the courts as well as providing a trigger mechanism where, before action has been commenced, a boundary issue has arisen. It then provides for a dispute resolution process that is very similar to that in the Party Wall etc. Act 1996, which, as I have said, it was my privilege to take through your Lordships’ House at the time. That Act has been in force since 1997. It is believed that around 500,000 to 600,000 cases have been dealt with under its umbrella, and only about three cases of substance have proceeded to the senior courts and not many more than that to the county courts. It is a tried and tested formula in which surveyors are appointed and charged with objectively considering the issues and producing a document, known as an award, setting out their agreement and determination. On matters where they cannot agree, there is a third surveyor who will effectively act as a referee. The award so produced, by either the two surveyors or one or other of them, or the third surveyor, as the case may be, is appealable to the courts. So there is judicial oversight.

Unappealed awards, however, would require registration of the outcome with the Land Registry as a determined boundary. The determined boundary is a specific process, which means that, as opposed to the general boundary rule, the actual boundary in question—not necessarily the whole boundary of the property but the particular boundary—becomes part of the registered title, and any future purchaser has due notice of that. So it makes that boundary definitive for the purposes of the registered title, and the purpose of that is to avoid the case then resurfacing at some future date because of a change of ownership.

The Bill provides for the role of surveyor to be discharged by certain specified types of person. There are some precedents for this; for example, in some agricultural arbitrations the arbitration function has to be exercised by a chartered surveyor. The point is that the exercise of technical expertise in boundary matters must necessarily be done by someone with the requisite training, subject to continuous professional development and with a proper policy of indemnity insurance. Only professional bodies such as those referred to in the Bill encompass all of these and monitor them year on year.

To summarise: I believe that the Bill, or something like it, would defuse many potentially contentious situations; provide orderly and more predictable outcomes to cases that have become contentious; reduce costs; and substantially reduce timeframes from years to months. A typical party wall case, for instance, is normally dealt with in a matter of a few months, seldom running into years. More to the point, it would contain the risk and reduce the heartache, stress and bitterness of these often very emotive situations. I believe that the courts would thereby be freed up. It would prevent serious and protracted blocks on transacted property and, with that, the corrosive risks of attendant uncertainty. It would be flexible and, as I have suggested, reasonably future-proof.

There have been some criticisms of and comments on the Bill, and I will address one or two of them. First, it has been said that it would somehow cut across title issues. For the reasons I have already stated, I do not believe that that is the case. It has also been suggested that it is unnecessary, but I believe that I have made the case for its necessity, even though the numerical incidence of such cases may appear low in statistical terms. It has been suggested that the Bill would sit ill with adverse possession cases. Again, I do not believe that the Bill trespasses—if I can use that term—on that territory.

It has been suggested that there are other suitable forms of dispute resolution. Sadly, this does not seem to be the case because, as I say, the parties to a dispute cannot be obliged to use them or adhere to the outcomes. It has been suggested that the Technology and Construction Court, the judicial body to which the Bill proposes that an appeal be made, is not the appropriate forum for that. I have had some very helpful email correspondence with Judge Anthony Edwards-Stuart, who is in charge of the Technology and Construction Court. He said that it was not the right forum, but very helpfully suggested that perhaps the Bill might merely refer to a right of appeal to the High Court, leaving the Heads of Chancery and Queen’s Bench divisions to work out which court should actually deal with the appeal. I am very happy to accept that sound advice.

It has been suggested that the definition of “surveyor” may need tweaking—funnily enough, because it makes a technically incorrect reference to “engineers”. Again, I am very happy to tweak that and oblige by dealing with that in an amendment. I believe that these and other matters can be dealt with by amendment to the Bill. With that, I beg to move.

My Lords, I congratulate the noble Earl on bringing the Bill to the House, the second in his suite of “neighbourly matters” legislation—the first being, as he said, the Party Wall etc. Act 1996, of which more in a second. I welcome the very clear reasoning that he has just set out.

Boundary disputes of course happen naturally and always will. Those who sit in tutorials learning Roman law at Oxbridge have to learn about them from several thousand years ago, and Citizens Advice has advised that last year alone it was giving advice on 3,700 such disputes. I dare say that there were many more.

The situation in England and Wales at the moment means that such disputes are extremely expensive to sort out and very slow. They give rise to blight on an affected property, and that blight is expressed both in the saleability of the property and in the ability to raise mortgage finance on it. They give rise to problems between what one might term big party property owners and small party property owners because the big party will be tempted by use of wallet to be, frankly, unfair to the small party, and abuses can and do happen. They also clog up the courts, about which I shall say more in a second.

I feel that the Bill is in line with a general policy in life of trying to provide better access to justice for people. It would speed things up and produce much lower costs. It would also blunt the abuse weapon, to which I have just referred, between larger and smaller parties.

I have much direct experience of the Party Wall etc. Act 1996, both as a private individual and corporately. At least two of the things that I have been involved in have become very contentious indeed. I feel that, after nearly two decades of it being in service, the one thing that one can say is that the mechanism provided under that Act really works well.

One party wall surveyor, who I think is the chairman of the Pyramus & Thisbe Club and who has been in practice for more than 25 years, told me proudly that he has never had to go to a third surveyor in his line of work. There is a very clear reason for that, which is that to be a successful surveyor you have to have as a core skill relationship management; otherwise, you simply will not get any clients. That ability to have relationship management is, I am sure, at the core of being able to bring together parties whose feelings often run very high and at the core of being able to get a deal done.

The noble Earl mentioned previous criticisms of efforts to bring forward legislation of this kind. There is one more criticism, which is that surveyors lack legal expertise. I think that is a weak point and I shall make three counterpoints, although there are more. The first is that, very often in these disputes, the issues are not legal but factual. A surveyor with gum-boots on is probably much better suited to facilitating a resolution in a dispute than someone sitting in a lawyer’s office.

The second point that I make in rebuttal is that surveyors can and do employ a lawyer if a legal point comes up. Indeed, in one of these very contentious cases that came up, precisely that happened. Both surveyors immediately wanted to instruct a lawyer on a very arcane point. Legal advice was taken and prepared, and the dispute was eventually resolved.

The third point concerns the judiciary. We have had various quotations and in fact the law reports are littered with interesting quotations from the judiciary about how little they enjoy boundary disputes. I have a quotation from Lord Justice Mummery in Bradford v James in 2008:

“There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills”.

He went on:

“Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both”.

I think that the judiciary would certainly want to try to export a lot of boundary disputes to another method of resolution.

In summary, I agree very much with the noble Earl that the current arrangements produce disputes that go on for too long, are too expensive, are open to abuse—there are instances of abuse—and clog up the courts system. I have three very short questions for the Minister. First, does he agree that it is preferable to do something about this issue now than to let the status quo be? Secondly, does he agree that the Party Wall etc. Act mechanism has been a great success over its nearly two decades? Thirdly and accordingly, does he agree that such a mechanism could successfully be applied to other boundary disputes to the benefit of all?

My Lords, I declare at the outset my property interests, which are in the register.

I support the Bill for two reasons. One is that I think it is a very positive and good idea, and I like what is in it. The second is that I have huge respect for the noble Earl, Lord Lytton, and his expertise in this field. I am a qualified dentist but I am not a qualified anything in terms of property, other than having experience of being a sufferer of people who argue about something and then it ends up in court. I found myself in a situation where, although the case was withdrawn and ruled to be completely out of order, my legal bills simply to have the case withdrawn and have it vanish from the list were horrendous.

Therefore, I support something that is practical and easy to operate, as well as being a system in which the public can have confidence, as I believe they can as there is a parallel with the party-wall procedures. I have never had any problem with party-wall procedures; I have found them very effective. I think that this country is tending more and more to push out smaller self-help systems in favour of putting us all into court. I am very opposed to that. The leasehold valuation tribunal, where you could take your case and you were told that it would not cost you more than £500, was thrown out. Now, it costs you much more than that even for an appearance. I understand that employment law has gone the same way in that you can no longer handle cases yourself. I think that there are many very good things about people being able to deal with their own cases with the benefit of help from someone such as a qualified surveyor, who is well qualified and understands the process. I believe that the public in general would be relieved to know where to go to get this sort of advice. The party-wall system is well known, and something similar, as proposed in the Bill, would definitely have a very good effect.

I am also delighted to speak after the noble Earl, Lord Kinnoull, because I served with his father for many years on the Woolwich Building Society board. I held him in very high regard, and I hope and trust that his successor has the same ability. From the sound of it, that seems very likely, and I hope that we will hear more from the noble Earl.

I like the fact that the Bill proposes the establishment of clear and simple processes. They can be understood by ordinary people in the street or by a neighbour who has a boundary issue with you. The noble Earl, Lord Lytton, mentioned that people are terrified of getting involved in something where the costs are unlimited. People can even find themselves losing their properties after they have taken on a legal challenge. Qualified surveyors are respected and valued.

I think it was mentioned that there would be a code of practice, and I feel that that would be very important. Of course, the Government and Members of this House will probably have an opportunity to look at any code of practice that goes with the Bill, and it will be important to consider it in detail. However, it is the sort of thing that people are used to. They like to know that there are procedures that they can follow and understand. Technical procedures have a complexity, which the noble Earl mentioned, and therefore you need to know where to go to get the right advice. I stress that I very much support non-judicial means that work. If they do not work, you can find yourself in an expensive situation. However, by that time, you will know a little more about the situation and might be more willing to agree to something. I certainly believe that to be the case.

I do not intend to go on at great length because the issue is clear-cut and the proposal is good. The case has been presented in great detail by the noble Earl, Lord Lytton. It is worrying that every politician seems to be pushing the public more and more into litigation. Instead, simple procedures such as that proposed would avoid much of that. It would also do away with the acrimony which it is terribly sad to see develop between people who have been neighbours for years, and have got along well; suddenly there is bitterness, which is not forgotten and lives on.

I strongly support the Bill. I will not go on any more because everything that needs to be said has and will be said here today.

My Lords, I want to say a couple of brief things in the gap. A dispute such as this happened to my family and it would be useful if a proposal such as this covered it, although I am not sure whether it does.

What happened was that there was a privately owned lane with a verge along it. The title deeds to it were probably lost in the mists of time. No one could find them and it did not really matter. However, the people who owned land along the lane sold off building plots. The trouble is that the chap at the end of the lane, where it joined the highway, then put in a claim for adverse possession over the verge, which the Land Registry accepted, even though there was no fence along the verge edge. The registry said that the applicant had mown it or whatever, and agreed to the application. The challenge is that the water meters for the entire lane are at the end of it. That is all right because an existing right can be proved, and the water for all the other properties down the lane runs under it. However, the owners of those properties have no right to dig up another person’s land—or apparently they do. We understand that there is probably a right to maintain the water pipe; therefore, although adverse possession over the land was granted, there is probably also a pre-existing right to use of the lane.

That may be fine, but no one is sure where the telephone lines, sewage or other things run. What is under there? And what happens when one wants to put in something new, such as broadband, when there is a need to run a fibre-optic cable under the lane? Can you do this? The answer is probably no because the owner has adverse possession, and I am not sure how fair that is. The challenge is that because the Land Registry has accepted the application and registered it, the situation cannot be disentangled. Should one be able to?

I merely describe the situation; these disputes get complicated and there needs to be a simple way in which to sort them out. Perhaps issues such as this could be incorporated within the scope of a Bill such as this. It may be too difficult; I do not know. However, unravelling such issues should be possible because it is easy to make mistakes, particularly when no one knows the precise position. This issue arose partly because there was no duty to inform the people who lived up the lane about the fact that adverse possession was being registered because there was no apparent interest in it. I leave noble Lords with that other difficult problem.

My Lords, I thank the noble Earl, Lord Lytton, for bringing this Private Member’s Bill forward for debate today. He is a man of considerable expertise in this area, and the intention of his Bill is to resolve property boundary disputes at the earliest opportunity and with the least cost to the individuals concerned. That is a very welcome intention indeed.

We are all aware that matters concerning boundaries can lead to highly charged and protracted legal proceedings, which can be extremely expensive for the parties involved and certainly far more expensive, as the noble Earl said, than the value of the land in question or the boundary in dispute. That situation is of benefit to no one and one we all should all be concerned to remedy.

We had a useful debate on this very issue on 15 January this year, led by the noble Earl. Being able to move forward quickly and consider proposed legislation in this area is welcome progress. I generally welcome the Bill and what it proposes. That is not to say that there are no areas where it could be improved and refined in your Lordships’ House, and I hope we will have a day in Committee to do that.

As has already been outlined, the Bill makes provision for the resolution of disputes concerning the location or placement of boundaries and of private rights of way relating to the title of an estate in land. It seeks to do this by requiring the owner of land who wishes to establish a boundary to serve notice on the adjoining landowner. If the adjoining landowner does not specifically consent to the notice, a dispute is deemed to have arisen. The dispute is then resolved by an agreed surveyor or, where there is no agreed surveyor, three surveyors who shall determine the precise location of the boundary or location and extent of the private right of way. I very much agree with the noble Baroness, Lady Gardner of Parkes, that too many matters are driven towards the courts, and the Bill gives us a clear and straightforward way in which to resolve these disputes.

The matter is not to be questioned in court except through an appeal to the Technology and Construction Court, or perhaps just the High Court, and if no appeal is made within 28 days, the award is submitted to the Land Registry. The Secretary of State shall by regulation approve a code of practice that would set out the form and manner in which the documents are to be served and used under this procedure. Where a party to the dispute seeks to disrupt or not co-operate with this process, they would be guilty of an offence and, on summary conviction, liable to a fine.

I am assuming that the Bill is not going to receive an enthusiastic welcome by the noble Lord, Lord Faulks, but I hope that he can recognise that this is a real issue—a real problem—and that this is an attempt to reduce the costs and have these boundary disputes determined quickly and efficiently for as little cost as possible to the parties involved. The noble Lord on a previous occasion has said that this proposal would not always return beneficial results and suggested that this could be due to the adversarial nature of these disputes and the potential lack of legal expertise held by the appointed surveyors. I agree with the points made by the noble Earl, Lord Kinnoull, in that respect. If the Minister intends to pursue the opinion he stated previously, perhaps he could also address the argument that it is the very expertise of these surveyors in determining these matters that in fact would make the likelihood of successful appeal proceedings less likely. That is because the determination will have been made by a qualified professional who is expert in their field, following a code of practice set out by the Secretary of State on how these matters are to be determined.

It would also be helpful to your Lordships’ House if the noble Lord, Lord Faulks, said that he is of the view that this and a combination of factors would mean that a high number of appeals is likely. That would not be beneficial. Does he expect more boundary dispute appeals to appear before the courts, or would there be fewer appeals but not sufficiently few to justify making the change proposed in the Bill? How did he and his department come to that conclusion—if, indeed, that is the conclusion? Will he share that information with your Lordships’ House by placing a copy in the Library?

It may be that Minister is absolutely right, but I should like to understand what is behind that thinking if he is going to put forward arguments such as those he advanced in January. With those questions to the Minister, I bring my remarks to a close and again thank the noble Earl, Lord Lytton, for bringing this matter before your Lordships’ House. It is a valuable contribution to the debate on these matters and a pointer to where we need to make improvements.

My Lords, I congratulate the noble Earl, Lord Lytton, on securing a Second Reading for his Bill on this important issue.

As the noble Lord, Lord Kennedy, indicated, we had a debate, initiated by the noble Earl in January this year, in which many of the issues that have been discussed today were canvassed. That is nothing but to the good. Similarly, I have had an opportunity to meet with him and others who are concerned with the issues that the Bill generates. I am grateful for that opportunity, and for the noble Earl’s acknowledging his engagement with officials in my department.

The Bill’s core aim is making it easier to resolve boundary disputes. It proposes to do this through a system like that adopted in the Party Wall etc. Act 1996, which would require disputes about the exact location of a boundary between adjoining properties in England and Wales to be referred to a surveyor or surveyors acting as independent adjudicators for final determination, subject only to a right of appeal to the Technology and Construction Court.

Pausing there, I note that the noble Earl has been in communication with Sir Antony Edwards-Stuart about the suitability of the TC court as a venue for appeals. He has indicated that he does not think it appropriate but makes some useful suggestions. I am sure that, if the Bill were otherwise to proceed, the precise venue for an appeal is something that could be satisfactorily concluded.

The Bill also proposes to apply this system to disputes relating to the location and extent of private rights of way.

The noble Earl considers that the procedure proposed in the Bill will make dispute resolution simpler, faster and more cost-effective. These are laudable aims, which the Government share. Indeed, we have made, and continue to make, considerable efforts to control the cost of civil litigation to ensure that the costs incurred are proportionate to the subject matter of the dispute. However, we have significant reservations about the extent to which the proposals contained in the Bill would in fact improve matters. Indeed, we are concerned that they could have the unfortunate effect of making the resolution of these disputes more complex and costly than at present.

A similar Private Member’s Bill relating to the resolution of boundary disputes was introduced in the other place in 2012 by the honourable Member for Dover, Charlie Elphicke. In the light of the concerns that that raised, the Government decided to carry out an initial scoping study, the results of which were published on 15 January this year. The core conclusions of the scoping study were that there would be merit in the Government carrying out further work to assess the feasibility of improving a number of aspects of the current system, including, in particular, the use of mediation and expert determination, the spreading of best practice and the provision of better information, but that more radical reform, such as that proposed in this Bill and its predecessor, would not currently be justified.

The noble Earl’s Bill differs in some important respects from its predecessor and, in particular, extends to disputes about the location and extent of rights of way. These were not considered in the scoping study to which I have referred.

Before I update the House on the steps the Government have taken since the publication of the scoping study in considering improvements in the current system, I would like to focus on what we see as the core difficulties with the approach proposed by the noble Earl.

Responses to the scoping study confirmed that boundary disputes can arise for a number of reasons. Although some disputes may follow an unprincipled unilateral annexation of a strip of land, many more will derive from two honestly held beliefs—or fairly honestly held beliefs—as to where the boundary lies. At the root of these divergent views will frequently lie a conveyance that is poorly drafted or, at least, does not define the property to be transferred with sufficient clarity and precision. Because of this, such disputes will ultimately hinge on the legal question of who owns a particular piece of land or is entitled to exercise a particular right of access, and will fall to be decided on the interpretation of the evidence in the light of the law. In particular, the outcome will depend on the interpretation or construction of legal documents, such as conveyances and the plans incorporated in them.

I do not, in any way, wish to downgrade the very substantial contribution that surveyors can and do make to the resolution of these disputes. It is of course the case that judges will often rely to a considerable extent on the advice and expert evidence that surveyors provide.

In answer to the question raised by the noble Earl—is a boundary line a technical issue or a legal one?—a technical assessment of where a boundary lies is, in part, a surveying exercise. It would be unusual not to consider the lie of the land. However, this is not the whole story. The line of a boundary is ultimately a legal issue. I note the distinction that the noble Earl has made but am afraid that I am not entirely convinced by it.

The kind of dispute with which we are concerned is one that the courts and the land registration division of the property chamber of the First-tier Tribunal are designed to determine. I entirely agree with all speakers in this debate who confirmed that surveyors have great expertise in this area. However, a surveyor, no matter how expert in technical issues, will not be able to give a ruling that is conclusive in legal terms and will not necessarily have the legal expertise to deal with the complex legal issues that might arise; of course, I include adverse possession in this. This in itself would make it likely that many decisions would be appealed—this is my answer to the point made by the noble Lord, Lord Kennedy. That prospect becomes even more likely when one takes into account the considerable bitterness and antagonism that such disputes can generate.

I agree with all noble Lords who have expressed the view that it is far better that these matters are resolved out of court by simple arbitration or the involvement, perhaps, of one surveyor in a relatively informal context. However, as a number of noble Lords have pointed out, the reality is that these disputes can escalate and often involve costs that are out of all proportion to the amount in dispute. I fear that the mere interpolation of a process, which this Bill envisages, will not prevent those determined to see these disputes carried out to the bitter end.

The comparison with party-wall cases is of course important. However, unlike party-wall cases, boundary disputes are generally likely to produce a winner and a loser. Therefore, the chances that a loser will be determined to vindicate his or her view of what is right by bringing an appeal are high. A rigid system requiring referral in all cases at an early stage to the process, as set out in this Bill, could also serve to raise the stakes in the dispute, increase hostility and entrench attitudes.

Taken together, these points would mean that the Bill would simply add a further layer to the proceedings, which would increase the costs involved rather than reducing them. In addition, in some cases, the early appointment of experts could itself front-load costs where the dispute might have been resolved in other ways.

We believe that a more effective and proportionate approach is to look at practical procedural improvements to the current system, rather than undertake a radical overhaul. With that in mind, we are exploring the scope for improving court and tribunal procedure, encouraging the use of mediation and expert determination, and improving the availability of information on ways to settle disputes. We are in the process of developing firm proposals in the light of our discussion of these issues with the relevant bodies. As we announced in the report on the scoping study, we aim to announce our emerging conclusions before the end of the year.

I note, of course, that the noble Earl quite fairly said that the date for the Second Reading of his Bill was rather beyond his choice. I think he might accept that, in some ways, he would have been a little happier if it had come after the scoping report had been concluded. Be that as it may, I hope he will be reassured by the fact that the matters raised by his Bill are receiving serious consideration by the Government.

The noble Earl, Lord Kinnoull, with whom I shared the experience of studying Roman law at Oxford—there is some comparison with these issues—referred to the inequality of arms that quite often prevails in these disputes and which can result in their escalation. It is difficult to avoid that, whatever particular procedure we adopt. He also quite rightly made the point that surveyors are often particularly useful in resolving these disputes because of their skills in relationship management. That, of course, is a valuable quality in any profession, as I am sure he would agree.

The noble Earl said that the disputes are often factual, not legal. I agree with him to some extent. They are a bit of both: both fact and law. He referred, as did a number of other noble Lords, to the fact that the judiciary tend not to welcome such disputes. That is true. In my own experience, I have seen that judges, knowing that they are facing a boundary dispute, do not jump for joy at the prospect of the decision they will have to make. But not all judges, despite the quotations that we have received, share this lack of enthusiasm for boundary disputes. Indeed, the noble and learned Lord, Lord Hope, who spoke in the debate in January, told the House that he found them extremely interesting. He also, valuably, pointed out some of the advantages that there were in Scotland in resolving these issues, and in his careful consideration of the noble Earl’s Bill said that,

“I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues”.—[Official Report, 15/1/15; col. GC 267.]

The noble Earl, Lord Kinnoull, asked me three questions. I think that I have dealt with the party wall issue and the comparison, which I respectfully suggest only goes so far. On the status quo not being satisfactory, we are well aware of the difficulties and, as I have indicated, are considering them.

I am sure that many noble Lords have similar experience of potentially difficult and expensive disputes to that of my noble friend Lady Gardner, and the Government share her desire to do all we can to limit the expense and heartache which such disputes can cause. The noble Earl, Lord Erroll, spoke of the immense complexity that is sometimes involved in such disputes. I cannot of course comment on the particular problem that he outlined in detail, but I detect that what he was suggesting was that, if there is to be a change in the law, it would be good if it embraced as many of the potential difficulties such as those which he has described.

We are grateful to all noble Lords who have taken part in this dispute.

I mean this debate—I am most grateful. I hope that my comments in this debate will reassure the noble Earl, Lord Lytton, and others who have spoken that the Government are committed to ensuring that boundary disputes can be resolved fairly and effectively and to minimising the adverse impact of adversarial behaviour and entrenched positions. We believe that the work that we are undertaking represents a more effective approach than radical reform of the law, which the Bill suggests. While the Government will not oppose the Motion to give the Bill a Second Reading, for the reasons that I have given we have reservations about the changes to the law that it proposes.

My Lords, I thank warmly all noble Lords who have spoken. I hope that they will excuse me if I do not go into a huge amount of detail on what has been said, because all the matters that I feel are important have already been covered.

The noble Earl, Lord Kinnoull, and the noble Baroness, Lady Gardner, raised two core issues: first, access to justice and, secondly, the question: if not this Bill, then what and when? That will perhaps be more apparent at the end of the year, when the results of the scoping study are better known and the department’s further consideration becomes available to us. I live in hope, but at this juncture it is difficult to predict that.

The noble Earl, Lord Erroll, raised a different type of issue. I will ask him to forgive me if I do not go into detail on that either, save to say that questions of orphan bits of land—verges, footpaths, left-over bits from once larger landed estates and so on—are hostage to what can sometimes look like a land grab. With it, the extent of public and private rights and easements are considerations that are often shorn from the resultant successful registration of title by adverse possession, regardless of the physical presence of the representative bits of conduit underneath the ground.

I thank the noble Lord, Lord Kennedy, for the support of his party on this issue. I think that we all share the fundamental aims that we are trying to achieve.

I thank the Minister for saying that the question of the reference to the Technical and Construction Court can relatively easily be dealt with, and I believe that that is the case. He then turned to his core reservations. He felt that expert determination or mediation was the way forward but he regarded this Bill as radical. I do not entirely share that view given that the constituent bits of the mix, as I have explained, have been rather well trailed and bench-tested for the past decade or more. That apart, the Minister still did not explain why under current terms enforcing expert determination and mediation, which is ultimately the only way of corralling these things, can be dealt with other than by being somewhat radical in approach. So we possibly part company there, but it may be a matter for further discussion at some juncture.

I appreciate that an assessment of a boundary may only partly be a technical issue, but getting rid of the assessment of what I might call the physical issues in advance and dealing with it by way of surveyors of both sides would refine the situation in a way that it tends to be refined anyway at the stage when, later on, litigation is well under way. At that point, the trial judge and the protocols demand that a technical expert be appointed by either side if they cannot agree a single joint expert and that a report be then produced which has to be exchanged or, at any rate, comes before the court. However, at that stage, much powder and shot has already been expended in the battle of wits between, as we have heard, often very unequal parties. I cannot help thinking that putting the consideration of the factual and technical basis before the process rather than part way through would be of benefit generally.

Clearly, the Minister has to have the construct of due process and the proper sanctity of the court. He mentioned comments made back in January by the noble and learned Lord, Lord Hope of Craighead, when he referred to excluding the court entirely. I suggest that that is a slight exaggeration of what is contained within the Bill because that is not what it does. It leaves the backstop of judicial scrutiny in place. I understand the issues and in a sense we are where we are, but I believe that the Bill has merit. We should continue to discuss it and therefore I ask the House to give the Bill a Second Reading.

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