On the right foot

Wherever possible, an inspection of a potential development site should be carried out at an early stage (and certainly prior to the developer exchanging contracts to purchase the site). The importance of a site visit cannot be overstated, and the advantages to be gained from visiting and inspecting the site will far outweigh any the disadvantages, such as cost and the time spent travelling to and walking the site. An inspection may reveal adverse matters that would not be discoverable from an investigation of title, such as the existence of a potential ransom strip (where the site does not directly abut the public highway), the existence of a public right of way or of apparatus belonging to service providers, and potential boundary and right-to-light issues.

What to consider on a site visit

To ensure that nothing important is missed on a site visit, the developer’s lawyer could prepare a checklist. This should include the following.

• Does the site directly abut the public highway or is there an intervening strip of land which may be a ransom strip?
• Are there any ditches and/or hedges running alongside any of the boundaries? (See boundary enquiries and presumptions, below.)
• Are the boundaries of the site clearly defined?
• Is the site enclosed by fencing or walls along all boundaries?
• Do the on-site boundaries accord with the title plan?
• Is any apparatus belonging to a statutory undertaker or other service provider, such as an electricity substation, located on the site?
• Are there any overhead electricity cables crossing the site or electricity pylons located on the site which may need diverting or relocating? (If so, the developer’s lawyer should ask the electricity company if there is any wayleave consent relating to the cables / pylons and, if so, whether it contains a right for the landowner to determine the consent or relocate the cables / pylons. The developer should also be made aware of the statutory rights of the electricity company under the Electricity Act 1989.)
• Are there any mobile phone masts or other electronic communications apparatus located on the site which would hinder development and require relocating? (If so, and if the site is subject to a code agreement under the 2017 Electronic Communications Code (as set out in schedule 1 to the Digital Economy Act 2017), it may be difficult to bring the agreement to an end and obtain the removal of the equipment from the site.)
• Are there any buildings on adjoining land containing windows which overlook the site? (If so, the developer will need to consider whether its proposed development would breach or infringe any rights to light enjoyed by those buildings.)
• Are there any tracks or paths that have been created by the public walking across the site? (If so, this could give rise to a presumption of dedication under section 31 of the Highways Act 1980, and be an obstacle to development.)
• Does the route of any public footpath shown on the definitive map follow the route of the footpath on the ground, or has there been a diversion of the definitive route? (If there has been a diversion, the developer’s lawyer should try to ascertain for how long the diversion has existed and consider asking the seller to provide a statutory declaration that clarifies the position.)
• Is there any evidence of an adjoining owner exercising rights over the site (such as by having created an opening in a boundary fence)?
• Is there any evidence of an adjoining owner encroaching on to the site (such as by having moved a boundary fence)?
• Are there any trees on the site which may be protected? (Where a full planning permission has been granted and the implementation of the permission will involve cutting down or other work to protected trees, it will not be necessary to obtain separate tree preservation order consent from the local authority.)
• Does the site have any unusual features, such as a watercourse which crosses the access to the site or which separates one part of the site from another? (If so, this may pose an obstacle to development and it may be necessary for the developer to obtain a title indemnity insurance policy.)
• Is there any evidence of flooding?
• Is there any Japanese knotweed or protected wildlife (such as bats or great crested newts) on the site?
• Is the frontage of the site wide enough to accommodate any visibility splays which might be required under planning permission?
• Is there any evidence of the site being used for recreational purposes (such as dog walking or bird watching) by the public? (If so, there is a risk that someone may apply to register the site, or part of it, as a town or village green. The good news for developers is that there will be no such risk after an application for planning permission has been published or if the site has been identified for development in a development plan document or a neighbourhood development plan.)
• Are there any buildings or other structures on adjoining land that are located close to the boundary of the site? (If so, the developer may need to comply with section 6 of the Party Wall etc Act 1996.)

Boundaries and plans

Disputes and mistakes in relation to boundaries and plans are all too common in the context of property development. However, these can be avoided or reduced by taking the following steps.

• The developer’s solicitor should carefully examine the title plan to ascertain whether it reveals anything that may be problematic or cause concern, such as a gap between the site boundary and the public highway, or an electricity sub-station or watercourse within the site.
• During a site inspection, the developer’s solicitor should check that there is no discrepancy between the on-site boundaries and the boundaries as shown on the HM Land Registry-filed plan or (if title to the site is unregistered) the title conveyance plan.
• The developer should be made aware that the filed plan of a registered property is not definitive, but is deemed to indicate only the general boundaries of the property.
• The developer should arrange for a topographical survey to be carried out (regardless of whether it is acquiring the whole or part of the land owned by the seller) at an early stage, and the topographical survey plan should be compared with the title plan to ensure there are no discrepancies. The topographical survey plan will show the physical features of the site in detail and the boundaries of the site as they are on the ground.
• The developer should ensure that its architects are aware of the legal boundaries of the site and that all planning and technical drawings, including the planning / estate layout drawing and the road and sewer layout drawings, are based on the title plan (and not on any topographical or site survey plan).
• Where there is uncertainty about the ownership of boundary structures or a discrepancy between the on-site boundaries and the title plan, the developer should require the seller to enter into a statutory declaration – in the case of a discrepancy, it may assist Land Registry in plotting the correct boundaries.
• Where a developer is purchasing only part of the land comprised with the seller’s title, the contract plan and the transfer plan should be based on a coordinated boundary survey, and the boundaries of the land being purchased should be pegged out on site prior to exchange of contracts. Land Registry has specific requirements of the transfer plan.

Boundary enquiries and presumptions

The developer’s solicitor should make enquiries of the seller regarding the location and ownership of boundary structures. If the seller is uncertain about the ownership of boundary structures and/or the title deeds are silent on the question, there are a number of boundary presumptions which may apply. These include the following.

The hedge and ditch presumption

Where two properties are separated by a hedge and a single ditch, there is a presumption (in the absence of evidence to the contrary) that both the hedge and the ditch belong to the owner of the property on which the hedge is planted (see Emmet and Farrand on Title (Sweet & Maxwell) at paragraph 17.034). This presumption does not apply if: the position of the boundary can be ascertained from the title deeds; the ditch is not artificial (for instance, if it is a natural watercourse); the ditch or hedge was in existence before the boundary was drawn; or the date on which the ditch was constructed is not known.

The ad medium filum presumption

Where a property abuts a highway, it is presumed (in the absence of evidence to the contrary) that the owner of the property owns the sub-soil up to the middle of the highway (see Emmet and Farrand on Title, at paragraph 17.036). This presumption can be rebutted by showing that it must be inferred from the surrounding circumstances that the conveyance / transfer of the property was not intended to include the sub-soil of one half of the road. For example, the presumption will not apply where the transferor is obliged to construct the road and to procure its adoption. The effect of vesting the road in the highway authority will not be to transfer the freehold title in the road to the authority, but merely to vest in the authority the surface of the road and so much of the soil below the surface of the road as may be required for its protection, control and maintenance. In other words, the transferor will retain ownership of the soil beneath the road and the airspace above.

The ditch and highway presumption

Where a ditch lies between a hedge or fence of a property and the highway, there is a presumption that the ditch does not form part of the highway and that it is owned by the owner of the adjoining land (see Hanscombe v Bedfordshire County Council [1938] Ch 944 (ChD)). However, there is no rule of law which prevents a ditch from being dedicated as part of a highway, and this presumption may be rebutted (see Chorley Corporation v Nightingale [1906] 2 KB 612 and Halsbury’s Laws of England (5th edition, 2011), volume 4, paragraph 322). For example, the ditch may have been constructed by the owners of the road as a drain for the purpose of taking surface water run-off from the road. (A highway search may assist in determining whether or not a ditch forms part of the adopted highway.)

Riparian ownership

Where a property abuts a non-tidal river or stream, it is presumed (in the absence of evidence to the contrary) that the boundary extends to the mid-point of the river bed or stream. This relates only to the soil itself and does not include ownership of the water (see Emmet and Farrand on Title at paragraph 17.033). If there is an island in a non-tidal river which is in separate ownership from the riparian land, then it is presumed (in the absence of evidence to the contrary) that the boundary of the island is the centre of the channel between the riparian land and the island.

Ground investigations and surveys

A developer should always thoroughly investigate the environmental condition of a development site before entering into a contract to purchase the site (unless there is already a suitable ground investigation report on which the developer will be able to rely). A local planning authority will often impose a remediation condition in a planning permission authorising the development of a site (even if the site has not been determined to be contaminated land), and if the site is contaminated, then it will need to be remediated before development can commence. Solicitors acting for developers should also be aware of their professional duties under the Law Society’s practice note on contaminated land in relation to due diligence.

Where a developer intends to rely on an existing report, its age and thoroughness must be carefully checked, and the developer’s lawyer will want to ensure that the report is capable of being assigned.

A developer should also consider commissioning a desktop archaeological survey and/or an asbestos survey if the development will involve the demolition of an existing building. If there is any doubt as to the presence of archaeological remains, early consultation with the local planning authority’s archaeological officer and Historic England is recommended. An asbestos survey will determine whether any harmful asbestos is present in the building to be demolished. Harmful asbestos may be removed only by specialist contractors.

Searches

The developer’s solicitor should carry out various pre-contract searches, including an index map search (using Land Registry form SIM) of the development site and adjoining land.

This search should be carried out even if the title to the development site is registered – it may reveal a sub-surface mineral title. If it does, there is a risk that the digging of foundations may give rise to a claim for trespass by the mineral owner, and the developer may need to investigate the possibility of obtaining a mining rights indemnity policy.

They should also carry out a local search (using forms LLC1, CON29 and CON290). It is recommended that most of the optional enquiries on form CON290 are raised, including those relating to public footpaths, mineral consultation areas, and common land and village greens.

Additional pre-contract searches the developer’s solicitor should carry out include:

• a chancel repair liability search
• a CON29M local mining and brine subsidence claim search, if the site is located in an area affected by coal mining works or a Cheshire brine subsidence claim
• an environmental search
• a flood search
• a highway search (in the form of a letter addressed to the highway authority), which will usually reveal the extent of the public highways in the vicinity of the site and whether the site is affected by a public footpath or road improvements (although the result of a highway search should not be regarded as definitive)
• service enquiries of the statutory undertakers and utility companies
• a CON29DW drainage and water search
• a company search (if the title is unregistered and the seller is a company)
• land charge searches (sent to the Land Charges Department in Plymouth) against all the estate owners (if the title is unregistered) using form K15.

Additional searches may be required if, for example, the development site is located in a tin – or clay – mining area (such as Cornwall, Devon, Dorset or Somerset), in an area of archaeological interest, or near a railway or canal.

The results of all searches should be checked, and the developer informed of any adverse entries. For example, if a coal mining search reveals the existence of mine shafts within the boundaries of a site, this should be drawn to the attention of the developer, and if a local search reveals that a site is within a mineral consultation area, then, assuming that planning permission for the development of the site has not been granted, the developer should be told that the planning authority may refuse to grant planning permission if the proposed development would impede the extraction of minerals.

Development and title enquiries

The developer’s solicitor should also raise general pre-contract development enquiries with the landowner. The commercial property standard enquiries form (CPSE1 (version 3.7)) may be used, but the enquiries do not relate specifically to development land and, if they are used, the developer’s solicitor may wish to consider submitting a supplementary form of development enquiries. The developer’s solicitor may also need to raise specific title enquiries after completing their investigation of title. They should check replies to these enquiries carefully and, if necessary, raise further enquiries.