Policy & Resources Committee - P.2016/8
The States are asked to decide:-
Whether, after consideration of the Access to Neighbouring Land (Guernsey) Law, 2016 Supplementary Policy Letter dated 10th May 2016 and the Projet de Loi entitled "The Access to Neighbouring Land (Guernsey) Law, 2016", they are of the opinion:-
(a) to approve the proposals that:
(i) applications for access orders and related orders under the access to neighbouring land legislation be made in the Magistrate's Court (exercising its civil jurisdiction), with that court having the power to refer applications for determination by the Royal Court sitting as an Ordinary Court; and
(ii) the Law should provide for all access orders to be time bound with the States having power to amend the Law by Ordinance to provide for the making of access orders in perpetuity; and
(b) to approve the Projet de Loi entitled "The Access to Neighbouring Land (Guernsey) Law, 2016", and to authorise the Bailiff to present a most humble petition to Her Majesty praying for Her Royal Sanction thereto.
The above Propositions have been submitted to Her Majesty's Procureur for advice on any legal or constitutional implications in accordance with Rule 4(1) of the Rules of Procedure of the States of Deliberation and their Committees.
EXPLANATORY MEMORANDUM
This Law provides for the making of access orders, creates a right of access pursuant to service of a notice in respect of services on land that serve other land, and jointly-owned boundary features, and makes related provision.
Part 1 provides for the making of access orders by the Magistrate's Court in circumstances where a person requires entry onto land for the purpose of carrying out work that is reasonably necessary for the preservation, repair or maintenance of adjoining or adjacent land, and needs but does not have the consent of some other person to enter upon the land. It specifies the terms and conditions that the court may impose when making such an order.
Part 2 provides that a person may enter upon land for the purpose of preserving, repairing or maintaining -
a) services which serve other land, or
b) a party or jointly-owned wall, structure or growing thing,
where he needs but does not have the consent of another person to enter upon the land, subject to service of a notice (a "servitude tacite notice") on that person, and, in the case of services, to those services having been installed before the commencement of the Law. The Law makes provision about the contents and service of servitude tacite notices, and provides that a person served with such a notice may apply to the Magistrate's Court to challenge the notice, to seek the imposition of different terms and conditions in respect of the proposed entry and work or, after the completion of the work, to claim compensation in respect of any significant financial loss or significant loss of privacy or inconvenience claimed to have been caused by the work. Part 2 also makes provision in relation to unreasonable interference with services installed on land that serve other land.
Part 3 makes general provision, including in respect of the registration and discharge of orders, the referral of applications between the Magistrate's Court and the Royal Court, and appeals. Access orders must specify the period during which access to the relevant servient land may be exercised. Consequently all access orders must be time-limited. Clause 16 in this Part of the Law creates a power for the States to amend the Law by Ordinance, however, to enable access orders to be made that remain in force in perpetuity.
