Access rights are fundamental to freeing up landlocked development sites. Securing them early will protect a site’s value and viability
Developers are well aware when assembling a site for development that securing a suitable route of access to the site – both for temporary use during construction and for permanent on-going use to service the completed development – is critical.
Sometimes, however, assumptions are made as to the viability of an access route during negotiation without undertaking essential due diligence. This can lead to an unexpected problem later, resulting in renegotiation, delay, increased costs or even a compromised scheme.
The diagram below provides a reference point for ensuring that key elements of due diligence are considered when negotiating terms for the acquisition of a development site. As the bargaining position of landowners rapidly evolves at different stages of a development, it is vital that any doubts or issues are put to bed at an early stage, so that a clear position can be presented to a funder or purchaser.
In situations where access is via private land, there can be complications. Rights of way (which are a category of easements) are governed by rules established in case law. These cases contain many rules of interpretation, which open up opportunities for landowners to challenge the proposed use.
If that leads to a potential dispute, funding may be delayed until this is settled. Such a challenge could arise where the land that benefits from the easement does not cover the whole development site, or if there is ambiguity as to the scope or purpose of the easement.
If a right of way is not expressed to be “at all times and for all purposes”, a number of factors come into play, such as the way the right has been used to date or the type of use the original grantor intended. In short, simply identifying the access route and its owner may not be sufficient; the position must be carefully analysed after investigating title and raising relevant enquiries.
If a new right of way is to be granted, it is important that the necessary formalities for creating easements (which are again prescribed by case law) are duly observed. The relevant landowner must be capable of granting the right of way and the relevant parcels that benefit from and are burdened by the easement must be clear. Your solicitor should carry out appropriate title investigation and advise on the appropriate form of deed of easement.
Finally, the need for searches – local authority and utilities in particular – should not be underestimated. If a proposed route of access is affected by public rights, such as footpaths or bridleways, or crosses existing utility pipes or cables, a diversion is likely to be required and identifying such issues will enable you to decide whether that route is viable and if so, the impact on your costs appraisal.
For further information please contact Vijay Patel on 020 7653 1611 or at firstname.lastname@example.org