My earlier articles looked at the relationship between landowner and developer and the types of contract that could be used to give legal form to that relationship. This and successive articles look at the land and legal issues which might affect its development potential.
The land may be undeveloped or previously used for another purpose. Either way, if it is to be developed as we now want, it will need to be able to be serviced by way of access and utilities. It is seldom that the land abuts a public highway from which it can have full and direct access, and where there are all the utilities of sufficient capacity into which the development can connect. So, what happens if it is not so positioned?
Any piece of land invariably has rights which attach to it, most often expressed in legal terms on its title. Depending upon the plans for the access and servicing of the development, these rights exercised over neighbouring land might be crucial to determine if a connection can be made. The utility companies have their own statutory rights which they can exercise to provide services to a consented site but often they require the co-operation of the landowner over whose land the services are to be laid. Leaning on the exercise of statutory rights most often leads to substantially increased cost in any event.
In respect of the formation, use and dedication of a road and types of drainage, a developer can’t rely on statutory rights and the powers of the utility companies and will need to identify the rights benefitting the land which enable the access to be given and drainage achieved. Significant change in the use of the land e.g. green field to housing estate, can adversely affect the use of the pre-existing rights attaching to the land owing to what is call “intensification of use”.
Knowing where the access will go, if you will want it to be adopted as public highway in due course, and where the services will run is an important first step for any developer. Capacity within the service network and highway standards for construction will need to be considered. The developer’s solicitor can then investigate if access and services can be delivered or if new rights need to be negotiated with neighbouring owners or intervening land acquired.
In the next article I will consider the effect of third party rights over the potential development site.