Property developers and rights of way...

“In the end we had to pay the neighbour £50,000 and their legal costs just to allow us to access the site!” 

No one wants to be this person.  And you definitely don’t want to be the developer who also has to pay all of their plot buyers’ legal fees to sort this out.

Accessing a site might seem like the most obvious point to consider when developing land, but the legal issues can be complicated, even for land next to a public highway.

For example:

Developing A

Easy; it adjoins the public highway, so we can access straight from there.  But are you sure the road is legally adopted? Who owns that tiny gap between the pavement and parcel A; could they hold the site to ransom?

Developing B without A

Now there is no direct route to the highway, so you will need a right of way from the owner of A.  Say you plan to build two houses on B; you obtain a legal right of way from the owner of A “to access the two dwelling houses” on B.  No problem…

Adding on C

You have your two houses on B and the opportunity arises to buy C.  You buy C and build two garages on it.  Now the homeowners on B can park in the garages, right?

Not necessarily; the right of way over A is expressly granted “to access the two dwelling houses” on B.  Would this extend to C? It might if parking on C is ancillary to the use of B as houses, but you need to make sure.

Can you access C directly from A, or do you need to go through B?

If you rent one of those garages out to the neighbour of D, or build a flat on top of it, that might not be covered and the person parking on C could be trespassing on A.

Adding on D

Say you buy D and re-develop the garages into a single commercial premises covering C and D.  Even if you had the right to access C for commercial use, that would not automatically include a building covering both C and D.

In the case of Gore v Naheed and another heard in May, the Court of Appeal upheld the County Court’s decision to extend a right of way over A “for all purposes connected with the use and occupation of [B]” to include parking in a garage on C (in our simplified drawing).  It didn’t change the law but the appeal judges gave a useful summary of the case law and commented that there is no legal distinction between accessing C directly from A or via B, which was previously unclear.

Every case turns on its own facts and careful drafting is essential to ensure that developers obtain the rights they need (and may need in the future) to build their sites and sell plots quickly.

Access issues can result in costly settlements and prevent orderly plot sales.  If problems come to light once plots have been sold, the PR consequences could also be significant.

“Our lawyers were development experts and spotted the issue with the right of way before it became a problem.  The sellers sorted it out at their own cost.  It saved us a fortune.”

Be that person; use development lawyers who know what they’re doing.

The full text of the Court of Appeal’s judgment is available at http://www.bailii.org/ew/cases/EWCA/Civ/2017/369.html.

If you have any questions or concerns regarding the site access to a property then contact a member of our Real Estate, Land and Development team today.