Preparing the Ground for Development

The recent case of Banner Homes Ltd v St Albans City and District Council (reported in the Case Law Buff­et) reminded landowners that where they have land earmarked for development they need to be thinking ahead to avoid impediments to development arising.

Let us consider some suburban playing fields. The fields are surrounded by houses which have been built right up to the boundaries of the property. It is possible that these homes have unauthorised gates accessing the fields directly from their gardens which back onto them; they may even use the land for dumping their hedge clippings and lawn trimmings. Locals are sometimes seen walking their dogs around the perimeter.

So, what do we need to consider with an eye to future development of this field? A title audit is a good place to start and should highlight immediate points of action.

Title Audit

First, the boundaries of the property need to be walked to ensure that the Land Registry title plan or, if the land is unregistered, the plan to the root conveyance, accurately reflects the ownership on the ground. This is a good opportunity to spot encroachments and any unauthorised access (eg from garden gates). Don’t forget that private rights of way can arise by implication based on 20 years’ user as of right.

A review of the title will elicit a list of the rights and reservations which burden the land (including restrictive covenants) and which could inhibit development. Are there third party access rights which need to be modified by negotiation, or maybe restrictive covenants prohibiting development along the easement strip for an electricity cable or
high pressure gas main?

Understanding who currently occupies the property (and on what basis) is also key to delivering vacant possession of a development site. Are there any tenancies affecting the property? Do the tenants have security of tenure, or do the tenancies include break clauses for the landlord? It is important that these break clauses (and any statutory provisions that govern them) are understood in order to deliver vacant possession when required.

Searches

A local search should reveal the planning history of the site and will also tell you if the property is:

• Affected by Tree Preservation Orders - this may affect the ability to develop the site and may influence the layout of your development.
• Registered as common land - if the land (or part of it) is registered common land, this is bad news for development, since generally development of common land is unlawful.
• Registered as a Town or Village Green (TVG) - a TVG can be registered where a significant number of inhabitants in the locality have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years (think of those dog walkers around the field). Again, this would stymie development. Landowners can be proactive and take steps to avoid this by various means, including permissive signs, but advice must be taken where this risk is identified.
• Registered as an Asset of Community Value (ACV) - where land is listed as an ACV, it cannot be sold until notice has been given to the local authority, allowing community interest groups to come forward as bidders. If any such bidders come forward, the land cannot be sold for six months which can put the kibosh on a speedy sale. Quite apart from that, the fact that land is listed as an ACV can be a material consideration for planning purposes, which might have implications for development.
• Subject to public rights of way - consider whether any public rights of way cross the land and might need to be diverted to achieve the full potential of the site. Remember also the risk of public rights of way arising by ‘deemed dedication’ after 20 years’ public use as of right.
• Subject to landowner statements deposited under section 31(6) of the Highways Act 1980 - statements such as these can stop the clock running on the accrual of new public rights of way by deemed dedication. If they have not been lodged for a development site a prudent landowner may be well-advised to consider doing so. Similar statements can be used to combat TVG rights arising, although care needs to be taken not to precipitate the very applications by local residents that you are aiming to avoid.

A utilities search will undertake a wide-ranging search across numerous utility companies including statutory undertakers and commercial providers covering telecoms, broadband, water, gas and electricity. This will flag any large scale pipelines, pylons and cables which may affect development.

A water and drainage search will provide information as to whether the property is (or can easily be) connected to the mains for both water supply and surface and foul sewers.

Crucially, a highways search will confirm whether the property has direct access to a public highway. Where access is not direct from the highway care will need to be taken to ensure the property has sufficient rights of access for all uses envisaged by the development. It is not uncommon for access across third party land to be restricted to particular uses and this may require a negotiation to acquire the necessary rights to allow the development to take place.

These are just some of the issues that may arise to impede development. The message is: address them at an early stage so there are no nasty surprises late in the day.

If you require further information about anything covered in this briefing note, please contact Tom Kirkman, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2019