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Physical Impediments to a Development

Alix Lee, Senior Associate in Property Dispute Resolution team and Professional Support Lawyer at Cripps, comments

The importance of a thorough site inspection, cannot be overstated. The success of a development relies upon it. Developers, their surveyors and experts, should ensure that they have a detailed knowledge of, and are comfortable with, the development site that is to be acquired.

In our last article, we examined some of the legal hurdles to a development. We now consider just a few of the common physical impediments to developing a site in accordance with the agreed plans.

Does the site have access? Whilst it may sound obvious, this issue continues to stump many developers. It is crucial to make sure that a development site has direct access onto and abuts the highway (and without the need to obtain permissions to pass over private land). Appropriate access to site will be required both for the development phase and post completion. The standard enquiry to a local authority is usually limited to just assessing the liability to contribute towards road repairs. If there is any doubt, specific additional enquiries as to access must be raised.

Find out about the site’s history - Taking the time to research site history and past use can be a worthwhile preliminary desktop exercise for developers. Is the development likely to disturb an archeological wonder? Unearthing historical artifacts can cause a development project to become delayed or revised. Preliminary research may also reveal at an early stage whether the site is likely to suffer from contamination and this (alongside a comprehensive environmental search report) may assist the developer understand what remediation works may be required and the cost likely to be incurred. This applies as much to any buildings on site (where they are going to be converted) as it does to the land itself. For example, agricultural buildings may have been treated in ways (by using creosote) that are prohibited for residential use. #S

Utilities and telecoms – Inspection will quickly reveal whether there are any utilities apparatus on site, electricity pylons being an obvious one. Pylons and equipment may be the subject of a wayleave agreement, which will need to be carefully reviewed by the developers legal advisor. Telecoms providers may also have robust statutory rights under the Electronic Communication Code to resist a landowner’s request for any of their apparatus to be removed from or modified on site, and this could constrain a development.

Developers also need to consider whether the site benefits from sufficient utilities. Whilst there is no absolute right for a developer to have its site connected to mains apparatus, all the major utilities providers (excluding telecoms) have a duty to provide a connection. Developers should be discussing with the undertakers the connections required and the likely costs at an early stage.

Invasive species – Japanese Knotweed has hit the headlines again this year, causing prospective buyers and developers to carefully consider the impact that this non-native invasive species may have in the context of property and development transactions. Landowners are expected to take reasonable steps to prevent the spread of Japanese Knotweed to adjoining land and a failure to do so can amount to a criminal offence. Although there has, within the surveying industry, been a shift to a more balanced view on the impact that this plant (and others) can have on a development, public stigma, fueled by sensationalist headlines, remains. Developers and their expert surveyors should be actively inspecting for Japanese Knotweed and other invasive species on site. If found, remediation programs can be very time consuming and expensive and will undoubtedly cause delays to any project. Brownfield sites are particularly susceptible to knotweed infestation, given their vulnerability to fly tipping of contaminated soils.

What should developers be doing?
Alongside physical site inspections, the appropriate pre contract searches are fundamental. There are a number of search providers now on the market, all providing access to an extensive suite of searches that can be tailored to the specific site in question. Mapping tools can also help provide an initial heads up of any issues that may be worthy of further investigation. Comprehensive environmental searches will identify where there may be risks of ground contamination (or any other environmental risks) and assist a developer to understand what remediation works may be required. Flood risk and ground stability can also be analysed. Sites more susceptible to flooding may be subject to tighter planning and development controls. A developer might also want to consider what affect climate change may have on the proposed development. How will the changing weather and extreme weather events impact the built and natural environment and what impact may this have on asset resilience, value and insurability?

The common law principal of caveat emptor (let the buyer beware) places the burden on the developer to make sure that full and sufficient enquiries of the development site are made, pre-contract. Having a ready team of surveyors and experts on board from the outset to methodically investigate the site alongside the developer, leaving no stone unturned, will pay dividends.
Our final article in this series, next month, will consider risk management strategies for a development site.

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