Posted by Peter Foskett, Partner
Access for development land – much ado about nothing?
Do you own land that has development potential now or in the future? One important lesson is to assume that anything and everything will be challenged by those seeking to prevent development.
As a result, when it comes to access to the land, a developer will require you to prove three main things beyond question:
• the land can be accessed from the public highway
• the access is wide enough (both in legal terms and physically) for the land as developed
• the access extends to laying all necessary services and utilities from the public highway into the land.
Your ownership of the land adjacent to the public highway should be the simplest way of proving this to a developer. However, this isn’t always easy. Firstly, the land registry does not guarantee that your boundary is exactly where the red line on the title plan shows it to be. In layman’s terms it is the land registry’s “best guess”. Secondly, it can be difficult to compare the Ordnance Survey projection (which the land registry uses) and the highway authority’s plan as one may be modern and one may be historic. This is even more likely to be the case where your title is unregistered. This prevents there being absolute certainty on boundaries and ownership.
Unfortunately, the land registry will not update the title plan on request if the projection is historic, nor if there is an apparent gap between the title plan and the highway’s plan. This means, from a legal title perspective, ownership would need to be established by adverse possession. That is very difficult to do as by definition the land has been fronting onto the public highway and accessible to all.
So what do you need to do?
• Obtain a plan from your highway authority showing the extent of the public highway.
Compare this very carefully and critically with your title. If your title is registered, this will be simpler to do as you will have a title plan. If your title is unregistered, then you will need to find the most recent plan in the title deeds.
• Obtain a plan from the land registry showing the extent of the registered title around your land. This is known as a mapsearch. If this shows that there is a registered title between your land and the public highway, then you need to obtain a copy of that title to establish who the registered proprietor is. Hopefully it is the highway authority.
• If your title is unregistered, consider applying for voluntary first registration of your title. The land registry has discretion over the extent of land it registers voluntarily. At their discretion, they could eradicate any gaps between the public highway and your land.
• If there is or may be an area of land between your land and the public highway, take action to assert your ownership of it. This action could be re-surfacing the access way, mowing the grass or cultivating the land either side, or erecting signage that it is a private access. Best of all, you could erect a fence and gate on the boundary of the public highway to enclose the land without title with the land which you can show undisputed title. Keep a log and photographs of these actions. If in the future a developer requires a title indemnity policy to be taken out, these actions and the record of them will greatly assist in obtaining that policy.
In my next blog, I will look at the situation where the development land can only be reached over land owned by another party.
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