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New ICO guidance published on the time limits for responding to data subject access requests (DSARs).

The ICO’s revised guidance confirms that where a data controller asks the individual making the subject access request for additional information in order to enable them to deal with the request effectively the one-month time period for compliance will no longer be paused until after the controller receives the requested information. The amended guidance also confirms that the extended timescale for responding to complex or multiple DSARs will similarly also no longer be paused.

These changes mean that the new timescale for responding to subject access requests will run from the date that the DSAR is received or, if later, the date on which proof of an individual’s identification has been received. This constitutes an important change from the previous position which stated that the time period for compliance would be paused until the controller was in receipt of any additional information that had been sought from the individual.

The ICO’s revised Right of Access guidance confirms that where additional information is requested from the data subject by the controller, to enable it to properly respond to a subject access request, then:

“…..this does not affect the timescale for responding – you must still respond to their request within one month. You may be able to extend the time limit by two months if the request is complex or the individual has made a number of requests”.

Controllers will likely be concerned that any delay on the data subject’s part in providing any additional information that has reasonably been requested will have an adverse impact upon their ability to provide all of the necessary data within the required timescale. For this reason, the use of subject access request forms may become more common as controllers take steps to try and limit the impact of the ICO’s changes by encouraging data subjects to provide relevant information at the same time that the subject access request is submitted.

Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various legal services that we provide.
 
 
2020 23 28
Nathan Combes

For the neighbours involved, boundary disputes can be expensive and stressful. To try and make the process easier, the Property Litigation Association has published a ‘Protocol for Disputes between Neighbours about the Location of their Boundary’, known as the ‘Boundary Disputes Protocol’.

The Protocol applies to both residential and commercial properties. It aims to encourage neighbours to exchange information in a timely manner, minimising the potential for dispute, saving time, and keeping costs to a minimum.

The Protocol is currently voluntary, although we suspect it will become a formal pre-action protocol under CPR in due course.In the meantime Judges will no doubt be critical of parties who don’t engage with it. 

As soon as a boundary dispute arises, parties can agree to adopt the Protocol.

The date in which this has been agreed is known as the ‘Start Date’.

2 weeks from the Start Date, the parties must provide each other with official copies of the Land Registry title(s) for their own property and seek to agree whether any determined boundary exists. If there is, no further action will be required. 

If there is no resolution from exchanging the official copies, the parties should exchange all of the information they have in their possession within 4 weeks from the Start Date, including: 

  • Past conveyances;
  • Conveyances referred to in the official copies; and
  • Photographs of each property showing the disputed boundary
Within 7 weeks from the Start Date, the parties need to determine whether they have the first conveyance (when the properties were split from a larger title and passed into separate ownership). If they do not have this, they should discuss their options for finding the first conveyance. The parties should then seek to agree one of the following options:
  • An adverse possession/ boundary agreement claim is made; or
  • To proceed to investigate the paper title position, the adverse possession claim/ boundary agreement or both. 

Within 8 weeks from the Start Date the parties should discuss whether they wish to enter into negotiations or mediation or proceed with the next steps of the protocol. 

If a first conveyance has been identified(this is often not the case in our experience),then each party must determine the evidence they have in terms of showing what features existed on the ground at the date when the first conveyance occurred. In addition, any proposed witnesses of fact need to be identified within 3 weeks of the first conveyance being identified. 

If the first conveyance provides accurate plans and the parties cannot reach an agreement, a an expert surveyor will need to be instructed. They may visit the property and produce a plan of the physical features existing on the ground at the date of inspection. In some instances, a joint expert may be appropriate for this. However, in certain cases (such as those involving development proposals) it may be appropriate for each party to instruct their own expert. Instructions should be given within 5 weeks of the date when the first conveyance is identified. Short reports should be exchanged within 4 weeks after instructions are provided. Following this, within 2 weeks the experts should have a discussion in order to agree a short summary, to be provided to both parties. 

Within 4 weeks of the Start Date if either party believes that they may have a claim for adverse possession, they must inform the other party, setting out the basis of their claim and the following information: 

  • Description or plan of the area claiming to be in their possession;
  • The period during which it is claimed that the land has been in possession; and
  • Whether the claim is an “old-style” claim or “new-style” claim 

If the other party wishes to oppose the claim, they must provide an explanation for the opposition within 6 weeks of the Start Date. 

Within 14 weeks of the Start Date each party should provide the other party with all relevant documentary evidence and also identify their witnesses of fact will be. Documentary evidence may include: 

  • Photographs (including aerial photographs); and
  • Receipts for work carried out to the boundary. 

Where the interpretation of plans or photographs is not agreed it may be necessary to instruct an expert, which should be done within 16 weeks of the Start Date. The experts or experts should provide a report within 4 weeks of their appointment; once reports are exchanged, both experts should have a discussion within 2 weeks to provide a short summary to both parties. 

The parties should meet again within 2 weeks of the date on which the last steps set out above is taken. Ideally, the meeting should take place at the location of the disputed boundary with the expert(s). The discussions should be carried out “without prejudice” so they cannot be relied upon should legal proceedings arise. 

If the parties are unable to reach an agreement, they may consider alternative dispute resolution before proceeding with litigation. Alternative options include:

  • Arbitration;
  • Expert determination by an independent third party; or
  • Mediation 

If the parties reach an agreement with reference to a line on the ground, the line needs to be marked out by stakes. It is also important to mark the side of the stake on which the boundary lies. If the parties reach an agreement by reference to a plan, experts should be instructed to transfer the line on the plan onto the ground and place stakes to clearly outline the boundary. 

A written document setting out what has been agreed will need to be drafted, ideally by a solicitor, with a plan attached. Each party should then apply to the Land Registry to record the agreement against their titles. 

 

2018 49 07
Matt Pugh
The recent case of Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) has provided clarity for landowners suffering from repeat trespass on their property, have no idea who the trespassers are and fear further trespass.

The Claimant was the owner of the former Tetley Brewery site in Leeds. There had been a series of incidents of trespass between 2011 and 2018. On the most recent occasion in 2018, the trespassers triggered alarms and held a number of illegal raves in empty buildings on the site. The Claimant spent £25,000 cleaning up the mess.

Given the risk of fly-tipping (well known with such sites) as well as further illegal raves, the Claimant wanted to take steps to take decisive steps to prevent further trespass. Despite having fenced the site, installing alarms and paying for a weekly security patrol, determined trespassers were still gaining access. The Claimant applied for an injunction against unknown future trespassers so that they could call upon High Court Enforcement Officers and, if necessary, the police to quickly remove trespassers should there be a any further trespass.

It is not unusual not to know the identity of trespassers. The CPR provides for 3 scenarios where an unknown persons or persons could become a party in trespass proceedings:
  • Where a particular person was identified (e.g. in a photograph) but their name is not known.
  • Where a person was part of a fluctuating class or group or persons some of which were known.
  • Where the identity of the Defendant is defined by a likely prospective acts of infringement of the order the court is being invited to make
The Tetley Brewery case fell within the final category, the prospective acts including further illegal raves and fly-tipping.

The court gave useful guidance as what is required to obtain such an injunction and applied a two stage test:
  1. Is there a strong probability that, unless restrained by an injunctions, the Defendant will act on breach of the Claimant's right?
  2. If the Defendant has acted in breach of the Claimant's rights, whether the harm would be so grave that damages are no an adequate remedy
The test was made and the court granted the injunction taking into account the following;
  • The steps taken by the Claimant to secure the land
  • The brazen attitude of the trespasser and anticipated future trespassers
  • That there had been incidents of trespass of 2011, 2016, 2017, 2018
  • The timeframe between the application and the threatened further trespass
  • The risk to the lives of the trespassers given the unsafe site
  • The cost to the Claimant of removing the trespassers
The case shows that the courts will be very open to granting broad and extensive injunctions binding unknown future trespassers. This is good news for landowners.
 
2018 26 07
Matt Pugh