Don't let rights get in the way: part one

Don't let rights get in the way: part one

Published:

Author: Richard Willcox

Applies to: England and Wales

Rights of way can adversely affect, or even sterilise, potential development land. Developer purchasers should be aware of what to look for and what options are available for dealing with rights that are discovered.

This first of two articles will deal with rights belonging to others. The second article will look at what rights a developer may need for its intended use of the land.

Whether rights are public or private affects how they will be treated. Public rights can be used by the public at large whereas private rights are usually enjoyed by someone holding a proprietary interest adjoining or near to the land in question.

Interference with rights can give rise to claims for injunctions and damages and, for public rights, can also lead to prosecution. Planning permission on its own does not allow a developer to obstruct or divert a right of way and so developers should seek advice before site clearance or building begins.

Public rights

Public rights could be a concern where there is/are: open country, registered common land, signposted public footpaths, coastline, roads and/or where there is no signpost but there are signs of public use e.g. well-trodden or dirt path, gaps in hedges, stiles or vehicle tracks.

Of particular concern are highways, being common routes along which people can pass as frequently as they wish without hindrance and charge, although the type of use may be limited e.g. to pedestrian use only. They can arise through statute, express dedication or by a common law presumption, the latter of which requires use by the public as of right (meaning without force, secrecy or permission) and without interruption. There is no defined length of time needed, but it would be unusual to presume a highway on less than 20 years' use. To defeat such rights a landowner would usually need to show at least one of the following:

  • it has stopped people using the highway e.g. putting obstacles in the way, erecting signage
  • it has restricted use to a particular section of the public
  • it lacked the capacity to 'dedicate' the land as highway
  • it has given express permission for the use, meaning it has not been 'as of right'

There are also statutory methods of stopping up or diverting public rights of way, sometimes available even before planning permission for development is obtained.

Private rights

Private rights of way are easements, or rights benefitting a piece of land (known as the dominant land) that are enjoyed over another piece of land owned by someone else (the servient land). Easements can bind successors in title and so can have an impact on value as well as development potential.

Some methods of creating easements are very complex. It is important to look at the history of the land in question, how the right has been used and by whom. A careful visual inspection of the land is vital to check for signs of any rights, similar to those outlined above.

There are several grounds for challenging easements as follows (depending on how the easement was created):

  • if the scope of extent of the right cannot be determined then it could be void for uncertainty
  • if the right is to do something illegal, such as causing a nuisance
  • where the dominant and servient pieces of land are in the same ownership
  • where either or both pieces of land is/are let (tenants cannot acquire easements in their own right but can use them on behalf of their freehold landlords)
  • where an express grant expires
  • where the right is used excessively or for a purpose not intended by the grant
  • by statute e.g. compulsory purchase powers can distinguish some rights
  • express release i.e. the person who enjoys the right gives it up
  • implied release e.g. by the right being abandoned

Checklist

Solicitors' advice should of course always be taken when acquiring land, whatever the circumstances. They will undertake investigations to highlight any rights which may exist such as reviewing title at HM Land Registry and the deeds, raising enquiries of the seller, doing specific searches with local authorities and other public record-keeping bodies. They may also conduct a site inspection along with the purchaser.

Should any potential rights be spotted, the following should be checked:

  • are they ever exercised?
  • will they affect the proposed development and how?
  • if the rights were granted expressly, does the instrument of grant allow any change in the route or use and is this on condition that compensation is paid?
  • can the rights be accommodated within the proposed development?

If there are rights that will hinder or prevent the development, these will be need to be diverted or terminated. For public rights, a stopping up or diversion order will be needed from the planning or highway authority and for private rights a deed of release may be needed. Indemnity insurance may be available; to avoid inadvertently losing the ability to obtain insurance, no discussions should be had or questions asked with any neighbours or potential right users pending legal advice being received.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.