by Professor John Adams
The Rights of Access to Neighbouring Land Bill, based almost entirely on an eponymous Law Commission Report of 1985, passed all its stages in the Commons as a Private Member’s Bill on Friday in early July without a single word of debate. It obtained a Lords’ second reading two Tuesdays later, after a brief debate, and looks set to sidle on to the statute book in the autumn with scarcely a ripple of interest. This article looks not so much at the (powerful) arguments for and against the Bill as at its provisions and several difficult practical problems that enactment in its present form would create, and it argues the case for, at least, reasoned amendment.
Background
The Lord Chancellor referred to the Law Commission the problems allegedly caused by the absence of any general right of access on to a neighbour’s land to effect urgent and desirable work to one’s own property in 1978. Following the reference, the Court of Appeal’s decision in Trenberth Ltd v National Westminster Bank Ltd (1979) 253 EG 151 confirmed the absence of such rights. The commission produced a working paper exploring the issues in 1980, with a “glossy brochure” version, widely distributed via the offices of a major building society. One had understood that the public response to this innovation was poor; the resultant report — Law Com 151 Rights of Access to Neighbouring Land (Cmd 9692) — does, however, start with a statement of gratitude for the large volume of comments received, some prompted by mention of the paper on the radio programme of one James Young OBE.
Nevertheless, the eventual publication of the commission’s report in December 1985 was followed by a long silence. Then in July 1991 John Ward, a backbench MP, introduced the Law Commission’s draft Bill as a private member’s Bill; it was passed by the Commons on July 5 without a single explanatory word being said about it, and was given a second reading in the Lords on July 16. Only from the speech of the sponsor in the Lords do we learn that Mr Ward’s move was prompted by a rather sad experience of some constituents.
The Lords debate occupied 75 minutes of a sparsely attended sitting on July 16 (technically it was introduced prematurely). The Government’s spokesman welcomed the Bill, and issued warnings that, because of the tight timetable for returning Private Members’ Bills to the Commons, he hoped “consideration of it will not impede or damage its prospects of reaching the statute book”. Misgivings were expressed in telling terms by some of the speakers, however. So, unless peers, in the next debate in October, or MPs stage some effective opposition, we should see it on the statute book by the end of 1991, less than five and a half months from its introduction (including the vacation) after five and a half years of inaction! Amendment in the Lords, necessitating its return to the Commons, would effectively kill it, too.
Controversy
However, as the Law Commission’s report fully acknowledged, and as Lord Wilberforce put it in his speech, the Bill is “not uncontroversial” nor “a simple, technical Bill” and there are, or should be, “marked differences of opinion on some issues”.
Essence of the Bill
First of all, then, a brief summary of the Bill. Where a person requires entry on to another’s land to carry out works, and cannot obtain the agreement of a person “whose agreement to the entry he needs”, the former can apply to the court for an access order (clause 1(1)). Note that the applicant need have no legal or equitable estate or interest in the “dominant” land; he might, for example, be a contractor who has agreed to do the work. That could have a very significant bearing on the terms and conditions of any subsequent order; what it cannot do, save in the rarest circumstances, is lead the court to refuse the order (see below). “Land” is not defined in the Bill; under the Interpretation Act 1978 it includes buildings and other structures, but it might have been helpful to have carried that over into the Bill and even widened its title. The land affected by the order must be adjoining or adjacent to that which is to be benefited, but not a highway.
Who must be sued?
Significantly, it is nowhere stated in the Bill how to identify the person whose agreement is needed. A weekly tenant, say, being entitled to exclusive possession, would seem to be able to give consent but what if:
(a) he leaves before or during the effecting of the works; or
(b) he is forbidden by his tenancy from giving consent?
Any agreement (whenever made) preventing or restricting an application for an order is void (clause 7(2)); that does not affect a prohibition on a tenant from giving consent, and who would want to prevent an application anyway? On point (a), moreover, clause 7(1) provides that the access order does not bind anyone who is not a party to the proceedings. So if the weekly tenancy ends and the tenant leaves, or a longer lease is surrendered, forfeited, disclaimed or otherwise terminated, the order lapses, perhaps at a time when the owner of the dominant land is in the middle of extensive works of which those requiring access are an essential element. No reversioner, purchaser, executor or trustee in bankruptcy is bound by the order, it seems, and an order does not give any standing permission. Provisions to join in other parties likely to be involved in those circumstances (either by choice of the applicant for the order or of their own volition) would surely be wise and fairer; will the “full steam ahead” edict (seemingly issued with the Lord Chancellor’s blessing) prevent such an amendment? At first glance, the existing Rules of Court do not allow for that process.
Last, pity the poor weekly tenant dragged against his will into proceedings; if, retrospectively, his failure to agree is found to be unreasonable he may face quite heavy costs. The incidence of costs was indeed one of the areas briefly debated in the House of Lords. Silence on that issue, the present solution, is by no means the best solution and some presumption against at least an award of one’s opponent’s costs, save for virtually contumelious opposition, may strike many as fairer. The gain is all for the applicant; why give him the extra blackmail weapon of costs?
Conditions for an access order
The circumstances which can lead to an order are two:
(a) the works are reasonably necessary for the preservation of the land to which they are to be carried out and
(b) without entry on to the relevant land the works cannot be done at all or would be substantially more difficult or expensive. (Clause 1(2)).
“Reasonably”, “necessary”, “substantially” and “more difficult or expensive” all involve value judgments, it is true, but if the court (High Court or county court — see clause 6) is satisfied on the criteria it has no residual discretion to exercise, with one limited exception. It must refuse to make an order only if satisfied by the respondent to the application that making an order (no matter what conditions are imposed) would allow entry which would bring such hardship as to cause the making of an order to be unreasonable. That is a very restricted exception. “Hardship” has become attenuated in some circumstances (as witness section 27 Arbitration Act 1950) but may be a substantial obstacle here.
What is “preservation”?
Central to the making of an order, however, is the concept of “preservation”. It is not a common concept in law. The Law Commission report (which cannot be referred to in litigation, of course) explained it as including “any work… reasonably necessary to preserve…property” but did not venture a definition or explain if it meant preserve in a particular state or preserve from a specific danger. The Bill does not define it. A speaker in the Lords, supporting the Bill, referred erroneously to the definition of the word. He then cited part of clause 1(4) which allows that an access order may provide for works which include “(a) repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures”. That is a fairy comprehensive list (it omits “excavation”, incidentally) which the Law Commission put forward in its report but, while it illustrates what may be within “preservation”, it does not define it.
Both the Law Commission and the proponents of the Bill accept that it stops short of new building, but it seems quite uncertain how far short. What of the fashionable trick of shoring up the historic facade(s) of buildings and completely rebuilding the interior? Which side of the line is that? Are we to revive all the VAT cases on “reconstruction”? One could argue that adding a further storey or two to a building in a poor state is the only way to fund the renovation of the existing building and thus preserve it. (Consider the Royal Opera House saga). Will that addition fall within the test? The question should surely be asked and answered as to what “preservation” covers, for it is unwelcome to leave that to the vagaries of case-by-case litigation and hard bargaining. If the meaning is a narrow one, decided thus against the background that Parliament must have intended minimum interference with landowners’ rights, the Bill will do much less good than its enthusiastic promoters imagine (at least, one assumes that Mr Ward agrees with his Lords’ supporters). If it is a wide meaning, the Bill potentially has far-reaching effects.
No application to development
Ironically, whatever the limitations, the Bill will not meet the heartfelt plea of Mr Justice Scott in one of the “crane-jib oversailing” cases. At the end of his judgment in Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [7] 2 EGLR 173; (1987) 284 EG 625 he states:
It would in many respects be convenient if the court had power, in order to enable property developments to be expeditiously and economically completed, to allow, on proper commercial terms, some use to be made by the developers of the land of neighbours. But the court has no such powers …
Whatever the Bill does it will not give such power unless development or redevelopment can be dressed up as “preservation”. So to those who will argue that the Bill goes too far, there will be added the voices of those who think it does not go far enough. That must surely be a situation calling for informed and unconstrained debate, which may never take place now, it seems.
Works covered
To return to the Bill, other works listed in clause 1(4) are inspection, making plans, ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing the same, works related to hedges, trees and shrubs, and clearing and filling ditches. Several comments are called for. Basically, how can “inspection for the purpose of ascertaining whether works specified in (a) [cited above] are required” be reasonably necessary to preserve the applicant’s land? Inspection might show no work to be necessary.
Although permitted works may include tracing and renewing or repairing drains etc, the necessary probing and excavating, replacing and amending can relate only to the apparatus on the applicant’s own land, or on the respondent’s land but vested in his neighbour, even if the applicant is not that owner. Similarly, the hedge, tree or shrub to be removed, felled, cut back or treated (para (g)) or the ditch to be cleared or filled in (para (h)) must belong to the adjoining owner. The writer would guess that those limitations may not be apparent to the applicant for the access order nor welcome if they are apparent. The tales of woe for MPs’ constituency surgeries may remain at a much higher level than they may be hoping for, having simply voted with their feet on July 5 by allowing the Bill through undebated.
Content of orders — possible conditions
If an order is made, it must specify the works permitted, the start and finish dates for entry and details of the land to be entered (clause 2(1)). It may incorporate conditions for avoiding or minimising loss, damage and injury to the respondent or anyone else, to the land entered or to goods, or for avoiding or minimising inconvenience or loss of privacy (clause 2(2)). These can include restraints on how the work is to be done, working hours and days, precautions and safeguards, insurance cover and compensation (all in clause 2(4)) but no compensation for inconvenience resulting from the authorised entry or the mere making of the order (clause 2(5)). Since “entry” is to include “the doing of anything necessary for the carrying out of the works” (clause 8(2)), the first restriction may be more extensive than at first it seems.
The width of some of the provisions is uncertain, so it is not clear whether the rights of those, say, with an easement over the land to be entered must be allowed to be heard on precautions. The court can provide for reimbursement of “any expenses reasonably incurred by the respondent and not recoverable as costs” and for the giving of security for payments arising under clause 2 or 3 (clause 2(6)).
A lawyer’s query on the first limb — would the expenses include lawyers’ and surveyors’ costs properly incurred but disallowed on a party-and-party taxation? Clause 7(1), as mentioned, says that an order binds no one who is not party to the proceedings, so a change in the identity of the person exercising the rights granted, whether as owner or occupier of the dominant property or even just as contractor, seems to necessitate a fresh start; what then happens to all those conditions?
Effect of order
Clause 3 delimits the scope of the order. It will:
(a) authorise entry on the specified land to carry out the specified work (note that it is not in terms required to identify the details of the land to which the work is to be done);
(b) authorise bringing materials, plant and equipment reasonably necessary for the work to the land, leaving it there and removing it, leaving on the land and then removing waste from the works and entry by servants, agents and other authorised persons reasonably necessary for doing the work; and
(c) require the making good the entered land “so far as reasonably practicable” and indemnifying the respondent against damage to the land or goods resulting from the order.
Again, this bristles with opportunities for dispute — “reasonably necessary” (twice) and “reasonably practicable” for starters. If the respondent is our old friend, the weekly tenant, is he to be indemnified only for his own loss, or for the loss of those with superior titles as well? Will he hold the excess on trust for them? What duty of consultation with them is willy-nilly imposed on him? Is a wider duty than merely to consult imposed or implied? If all those matters can be provided for in the order, because of clause 2, has he to finance the cost of trying to negotiate all the terms, without any prior security for costs, and with the knowledge, on both sides, that, if he vacates it is back to square one? The court can vary or dispense with any of the para (b) or (c) items. The order will bind the respondent (but not those with superior titles) to allow the applicant (but not anyone else) to do what the order authorises (clause 3(1)(d)). The court has specific power (clause 4) to award damages against a non-complying party. Orders may be discharged or varied on application by a party to the proceedings (clause 5(1)); orders lapse on the specified termination date, without affecting enforcement of conditions or the clause 3 matters (clause 5(2)). Enforcement may not always be practical.
Apart from a provision for rules of court to deal with unascertainable or unknown respondents (clause 1(5)), there is no power to supplement details by ministerial order.
The Act, if the Bill proceeds, would start on an appointed day; it does not bind the Crown.
A typical scenario
A simple example will bring together a number of the problems discussed in this article. Assume L has created a lease (the length is immaterial) in favour of T, reserving rights of entry for the landlord and all others authorised by the landlord. Armed with this knowledge, N, owner of the neighbouring property, obtains an access order against L by proceedings in which T, is not joined. T then succesfully resists N’s entry, showing that the rights given by the order go beyond the terms of the lease reservation, a point never raised by L, N or the judge in the proceedings. N cannot proceed with his plan until he gets an order against T, although he may be well advanced with his works; L seems liable to N in damages and T must now deal with the full issues from scratch when all he may want could easily have been resolved in the earlier proceedings if only he had been notified and joined in. If L, N or T disposes of his interest, or dies, the whole process must start again, with a new cast.
To oppose — or not?
The writer shares the uncertainty recorded in the report, and expressed in the brief Lords’ debate, about the basic desirability of the measure in any event. Not only hard cases make bad law, but softhearted legislators do, too. Is sudden Governmental conversion to interference with the rights of some private owners in the interests of others after five years of total inaction a sign of something or other — the need for a softer image, a pending election, cowardice or what? It is not sufficient to stand back and just say the Law Commission consulted widely all of 11 years ago. Those who remain opposed to the whole concept of the Bill have effectively one more chance to kill it — by blocking or delaying the third reading in the Lords in October.
To amend
Others, like the author undecided on the principle, may nevertheless agree with him that hasty enactment without attention to many points of detail will bring tears and tribulations just like those caused by the rushed job of the Landlord and Tenant Act 1987. The Country Landowners’ Association has taken fright for one; the solicitor-peer Lord Coleraine expressed some of them in the Lords’ debate, highlighting that all the emphasis on urban and semi-urban property in the gestation of the Bill had side-stepped its possible effect on rural land (it gives a new and quite literal emphasis to NIMBY if you are a fan of the Bill!). There must surely be others, too, who ought to consider their position vis-a-vis what may be a nasty little time-bomb quietly ticking away in the summer heat — or may not, of course. Only the lawyers and the surveyors will gain from the need to unravel some of the uncertainties and fill in some of the omissions of the present Bill. The Government ought surely to replace a private member as the sponsor, take a much harder look at it and bring it forward for proper debate as early in the next session as possible. Mr Ward might care to have a word with Mr Austin Mitchell.
