Legal Rights Of Access To A Development Site – Overcoming Common Problems

Whether you are buying land to develop for personal or commercial use, your solicitor should always check that there are sufficient legal rights of access to the site.

In some instances, there might not be an issue (e.g. you can actually physically access the site without obstruction or any difficulties). But there could be legal access issues and this is not an uncommon problem.

If the site does have an issue, this should be resolved prior to purchasing the land.

Legal rights of access checks

Your solicitor can obtain a Highways Search. This will provide a plan showing the extent of the Adopted Highway nearest to the site.

This plan should be carefully checked against the Legal Title Plan (which shows the site boundary) to ensure that the Legal Title boundary immediately adjoins the nearest Adopted Highway.

What happens if there is a gap between the site and the nearest Adopted Highway?

If there is a gap between the site and the Adopted Highway then further investigations will need to be made. These can include:

Reviewing the Legal Title

The Legal Title should be checked thoroughly to ensure there is a full legal right of access to the site from the nearest Adopted Highway. The right should be checked to ensure it is sufficient for the intended use of the property. For example, a current right of access to a field, may not be sufficient to serve a new development of 10 houses.

If there is no right of access on the Legal Title or the right of access is insufficient for the use required for development purposes, then there are two options:

1. Indemnity Insurance
   

   Indemnity insurance does not provide a legal right of access but it does provide financial compensation if access to the site is denied to the site to be developed. The cost of the indemnity insurance will largely depend on a number of matters, such as the level of indemnity, whether the policy is pre-planning permission or post-planning permission and whether others have already exercised the right. The insurer will want confirmation that no approach has been made to the landowner over which access is required to obtain a legal easement.

2. Deed of Easement
   

   There is always the potential of a right of access being negotiated with the landowner and the parties can enter into a Deed of Easement to formalise the agreement but an unsuccessful request for this may mean indemnity insurance is not obtainable. A buyer or developer must appreciate that there is no legal obligation on the owner’s land to grant a right of access. The landowner could refuse to grant a right of access, or seek payment in exchange, which could affect the viability of the development. A buyer of land or developer must act with caution and not speak to any landowners about an easement until legal advice has been sought.

Depending on the circumstances of each transaction, a solicitor will be able to advise on which route should be taken. It is essential to always seek legal advice before discussing matters with a landowner over which a right of access is required.