Easements and access: key considerations for developers

For developers, access is everything.  Whether it’s getting vans, diggers or tippers onto site; connecting the development to utilities; or ensuring future occupiers can reach their new properties once the development is complete, easements and access rights can often cause the success or failure of a development scheme.  

These rights are a vital part of any development, but they often surface late, sometimes with disruptive consequences. Understanding how easements work, and how to manage disputes when they arise, is key to keeping projects moving forward. 

What are easements?

An easement is a legal right enjoyed by one property (the ‘dominant’ land) over another property (the ‘servient’ land).  Common examples of forms of easements granted and relevant to developers include:

1. Rights of way — to access the development land over a third-party’s land (by foot and/or by vehicle).
2. Rights of services — to run utilities such as water, electricity, gas, or fibre.
3. Rights of support or shelter — often relevant in urban or mixed-use schemes and often engaged alongside obligations under the Party Wall Act 1996 where works affect a shared or adjoining structure.
4. Drainage rights — allowing water to pass through neighbouring land.

As with rights of light, easements can arise through:

• Express grant – typically granted by deed;

• Prescription – where the right has been exercised openly, without force, without secrecy and without the permission of the servient owner for a period of 20 years or more. The two principal routes to a prescriptive easement are the Prescription Act 1832 and the doctrine of lost modern grant; or

• Implied rights – rare, but possible in some circumstances for example, such as pursuant to section 62 of the Law of Property Act 1925, which can operate on a conveyance to convert a licence or other informal arrangement into a full legal easement).

Why they matter to developers

Easements are critical to both the construction and long-term use of a development site. Problems arise when:

• The development depends on access over neighbouring land without a secure legal right (without a right of way to reach the development land, the land may be ‘landlocked’).

• Neighbours dispute the scope of an existing right, for example, whether heavy construction vehicles can use a right of way over a private road, or interfere with the right.

• Utility providers require rights across third-party land.

• Old, poorly drafted easements that cause uncertainty.

Disputes can delay planning, frustrate funding, or in the worst cases, render a site undevelopable.

Interference with an easement

Not every interference with an easement will give rise to a cause of action.  For the interference to be actionable, it has to amount to a substantial interference with the enjoyment of the right granted. The question is whether the right can be practically and substantially exercised as conveniently as before the obstruction or interference occurred.

Taking a right of way as an example.  A right of way does not grant an exclusive right to pass and repass over the land in question, so not every obstruction of that right will amount to an unlawful interference.  If the owner of the land, over which there is a right, erects a gate blocking the right of way, the mere presence of a gate is not necessarily a substantial interference with that right of way, especially if those with the benefit of the right are given keys to access the gate – they can (when balancing the owner’s right to secure its land) practically and substantially exercise the right as conveniently as before.  However, if the gate was removed and the access point blocked by an immoveable object, such as a fence, then this will almost certainly amount to a substantial interference – the right can no longer be exercised.

In that scenario, the interference will give rise to a private nuisance and permit the party whose right is being interfered with to seek:

1. Injunctive relief: Immediate injunctive relief to require the removal of any obstruction and to permit the continued use of the right to ensure the progress of the development doesn’t stall.   
2. Damages: If interference with the right of way prevents access to the development project for construction vehicles, deliveries, employees and contractors,. the developer may suffer delays to its construction timetable.  Damages can cover the additional costs incurred as a result, for example, increased labour expenses, contractor penalties caused by the delay, increased financing/interest costs. 
3. Declaration: A declaration as to the scope and permitted future use of the right – perhaps there is no express grant, and the developer is relying on a prescriptive right that needs to be ratified by the court.
4. Abatement: The removal of the interference without resorting to legal proceedings. This remedy is not generally favoured and is typically only appropriate in cases of last resort and where immediate legal intervention would be disproportionate or impractical.  It often escalates the dispute rather than resolves the dispute.  In practice it frequently escalates rather than resolves the dispute, and legal advice should always be taken before abatement is attempted.

Practical steps for developers

1. Assess early: Identify whether the development site already benefits from the required easements (and how that right has been obtained) or, if not: a) whether the proposed development can be redesigned so as not to require the benefit of an easement, or; b) whether the required easement can be acquired. Where an easement does exist, it is equally important to check whether it is a legal easement that has been properly registered at HM Land Registry. An unregistered equitable easement may not bind a successor in title to the servient land, and a right that appears secure on the face of the title documents may prove unenforceable if it has not been registered.
2. Prescriptive rights: Developers relying on historic access (20+ years use) should obtain statutory declarations from those having used that access to solidify any prospective claim.  Once the seller has had his money, it might be difficult to get them to engage at a later date and provide evidence in support of a prescription claim.
3. Commission expert surveys: Surveys and legal analysis can assess whether existing rights are sufficient for proposed use.  As well as making sure you have a right, developers must also be cautious about intensifying the use of that right (for example, turning a farm track into an access road for a large housing estate).
4. Plan for utilities: As demand for digital infrastructure grows, disputes over rights to lay cable for fibre and upgraded electricity connections for EV charging points are on the rise. Developers should factor these issues into early-stage planning and make sure it can service the properties it is constructing (no one wants a new house without electricity).  The same applies to drainage. It is important to distinguish between private drainage rights – which are governed by easement law – and connections to a public sewer, which are governed by the Water Industry Act 1991 and regulated by the relevant water and sewerage company.  Where a private drain connects to a public sewer, different rules apply and the water company may have its own rights of access and connection requirements.  Developers should carry out drainage analysis early and ensure that both private and public drainage rights are secured before construction begins
5. Explore insurance: Insurance can protect against third-party claims.
6. Access to Neighbouring Land Act 1992: It may be the case that the developer doesn’t need a formal right and the Access to Neighbouring Land Act 1992 might permit the developers to apply for a temporary right to carry out works (e.g. scaffolding, maintenance) from neighbouring land.  While useful, these rights are limited and not a long term solution. 

Easements and access rights often make or break a development. Developers who address them early – by investigating title, engaging with neighbours, and securing appropriate rights – are far less likely to face disputes that could ultimately render the project not viable. B P Collins’ specialist teams advise both developers and property owners on how to manage these risks at the outset of any prospective development, resolve conflicts if they arise and help bring projects to fruition.

The property disputes team wants to get to the heart of the issue, understanding the objective and managing the dispute to analyse the risks and achieve a resolution as swiftly, efficiently and as cost effectively as possible.  The team’s ethos is simple: solve the problem.  To contact the team for further information and advice please email enquiries@bpcollins.co.uk or call 01753 889995.