Over the past few weeks Daisy Scaife, a senior associate in B P Collins’ property team has written two articles on issues that should be considered when investigating a site for development, you can revisit them here and here. The final part of the trilogy will focus on the often-overlooked topics of mines and minerals, common land and TVG, and access. If you need specific advice on these matters, please get in touch with the property team.
Mines and minerals
The common law principle of land ownership is that a landowner owns not only the surface of the land but also everything right up to the heavens and down to the centre of the earth. As a result landowners will often exclude or retain mines and minerals when selling off parcels of land as these can be hugely valuable.
If mines and minerals are excluded or reserved, this is likely to be evident from title and search results, but this may also be apparent on a site inspection, particularly if the site has previously been worked as there may be vents or access points on site.
If the site was previously a mine, then there are likely to be limits on piling from a safety point of view and may also be a requirements for ongoing access for inspections which will need to be included in the site layout.
If the mines and minerals are in a separate ownership, there is a risk of trespass if a development is going to include apartment blocks and a developer will have pile foundations so it will be necessary to check what depth the ownership changes. Landowners that are retaining the mines or minerals will often negotiate the depth these start from to enable a developer to lay foundations without being liable for trespass.
Common land and town and village greens
Common land and town and village greens (“TVGs”) are two separate areas but are often lumped together as they can have a similar determinantal impact on the development potential of land.
“Common land” means land owned by one person over which another person is entitled to exercise rights of common, such as grazing animals. Whereas TVGs are areas of open space which over time have been used by the inhabitants of the town, village or parish, for the purposes of recreation and playing lawful games.
What can be considered as community use of open space and lawful sports and pastimes is extremely wide, and includes activities such as dog walking, bird watching and even blackberry picking. Whether this is a risk that can be identified on a site visit will depend on a number of factors including the time of year, the weather and even the time of day. Examples of red flags include dog waste bins, play areas and pitch markings.
Registration of a site as common land or a TVG makes building unlawful and there is no compensation to the landowner for the loss of development value. Consent of the Secretary of State is often required for building works on common land, but this is not commonly granted.
A search can be carried out to identify whether land is currently registered as common land or TVG, but the absence of registration does not preclude registration in the future. A landowner can deposit a landowner statement and map with the commons registration authority, which will end any period of recreational use “as of right” over land, and this should be revealed by a local authority search.
The access to a site both during construction and following completion can have a huge impact on the viability. On a site visit this is likely to be the first point of interest and may lead to an inspection abruptly ending if access is unfeasible with no prospective solution.
The first issue to consider is the current access and whether that is sufficient to service the site or be adequately upgraded. We would then look at how it fits in with the adopted highway or any rights of way in order to access the site. Utilising rights of way over private roads may need further investigation to check whether they are limited to “private motor vehicles” and won’t include constructions traffic, and to avoid any risk of a claim of unacceptable intensification of use following occupation of plots.
Often a development site will need a secondary access or an emergency access, so it will be necessary to look at any existing options and whether they have the necessary rights. A developer may also need to negotiate an access licence with a neighbouring landowner for the construction phase, particularly if the site is phased, as the owners of earlier phases won’t want their nice newly topped road ripped up by construction traffic.
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