Top Tips: No Access, No Development

Tuesday 23rd April, 2019

Whilst you may feel you have secured the perfect site for your proposed development, a lack of or insufficient access rights will halt your development abruptly in its tracks.

As a starting point, your solicitor should obtain Land Registry and Highways searches to determine whether or not the site and your intended access point directly abut a publicly adopted highway.

Where they do, this is the best outcome as it means neither you nor your end users will have to contribute financially to its upkeep and maintenance other than through taxation.

Where they don’t, your solicitor should determine whether there are any rights over the relevant adjoining land by reviewing the seller’s title in conjunction with their replies to enquiries and provide a clear summary of the legal position so that you can consider any next steps that will need to be taken to make your development viable.

Where no suitable rights are apparent, you’ll want to rectify this before exchanging contracts or where a third party is involved make the contract conditional on securing the necessary rights within a fixed time period.

Whilst the following isn’t an exhaustive list, 3 key things to consider where your access is by means of an easement will be:

  • Rights to re-route the access, if required by the changing nature of your development plans or simply to give you future flexibility.
  • Rights to modify the access e.g. re-surface and widen as may be required to accommodate your intended use.
  • Rights of access to install or connect into essential services, not just rights of way – including an obligation on the landowner to enter into a direct agreement with a utilities/telecommunications operator if required.

Keep you solicitor involved so they can start considering the necessary wording for the Transfer of Part, where the land is owned by your seller, or the Deed of Easement, where the land is owned by a third party and give you any pointers during the negotiation process which might help your position with the landowner.

Whilst the broader the access rights you request the more cash the landowner is likely to demand in return, its important to get it right at the outset to ensure your development is viable and to maximise your commercial position.

Ultimately, you’ll have calculated the maximum you’re able to spend on the land to make the deal stack up and walking away is likely to be the option where you can’t secure the rights you need at the right price.

Exploring the question of access rights with your professional team at the outset will help you to establish the viability of the development more quickly and before you’ve committed substantial resources to a project which may fail due to poor or insufficient access rights.

This article is current as of the date of its publication. The information and any commentary contained in this article is for general information purposes only and does not constitute legal or any other type of professional advice.  Marriott Harrison LLP does not accept and, to the extent permitted by law, excludes liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this article.  

Articles by Sam Swann