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Property development horror stories
- AuthorDominic Whelan
This article first appeared in the print edition of EG (Estates Gazette) on 27th October 2018.
Scary stories, haunting nightmares and unexpected shocks may all be associated with Halloween. But for developers the need to look out continually for unwanted surprises is something they live with all year. So, let's consider some of the development issues that, if missed, might make your bones chatter.
The presence of bats is a well-known nightmare for developers and can bring pain and disruption to their plans. Historically, these nocturnal mammals have been problematic for rural development sites only, although they can be present in more urban areas.
Typically, bats can be an issue if you are converting buildings (barns being the obvious example) or perhaps demolishing existing buildings or removing trees or bushes. They like buildings that aren’t affected by artificial light and are close to woodland or water. So, unused garages are a good example of where they may be found to be roosting.
What happens if your development is bat-infested? The starting point is to commission a survey to confirm where the roosts are and how the development will affect them. If bats are found to be present and would be affected by the development mitigation steps must be agreed (normally as part of the planning process). The key is to be aware that this process needs to be undertaken so it can be addressed in good time. The bat activity survey, which is likely to form part of the information required by the local planning authority, has to be carried out between May and September. The nature of the mitigation requirements will depend on the impact on the bat population. It may be that the need to preserve the bat roosts will require some minor design changes. Often it is a case of incorporating bat boxes to replace lost roosts. However, the position of the buildings on the development might need to be considered so that the new roost is as close as possible to the one that will be lost in respect of size and the direction it faces.
If bats are only found after development has started work is likely to have to stop until an ecologist has surveyed the site and drawn up mitigation proposals. It’s scary stuff if these flying creatures bring your development to a halt!
Just as "wool of bat" was an ingredient of the witches' brew in Shakespeare's Macbeth, so too was "eye of newt".The great crested newt and the developer have a long history. Great crested newts are now an endangered species as a result of development and other land use removing their natural habitats and are now offered significant protection under UK and EU law. It always makes good headlines when the press picks up on these small amphibians stopping large developments. There are even stories of newts being “planted” on sites to cause delays. It is no laughing matter for the unsuspecting developer if they do turn up.
Great crested newts normally live in large ponds or areas of water and, if known to be present on a site, have to be safeguarded or possibly moved to a safe habitat. If a site includes a pond or other water area where they could be present the planning authority are likely to require a survey. This isn’t necessarily hugely costly in itself but part of it can only be carried out between March and June, which is the breeding season that newts are most active. So any unexpected need for a newt survey can easily cause delays if the timing is against you.
It’s illegal to catch newts without a licence or cause harm or disturb their habitat in anyway, hence the need to take this seriously. If the survey reveals that they are present on site then a mitigation statement will be needed in order to protect their habitat or to safely move them. The mitigation requirements can include further, more detailed surveys, installation of special fencing to protect the newts from the adjoining development or creation of a new pond for the newts to be moved to. Contactors may have to be supervised to ensure newts are safe while the works continue. No doubt, an ecologist will no doubt be required. All of this points to costs and delays that may not be in the appraisal. The key is to deal with them early. If water is present on the site or nearby it should trigger a reminder to consider whether an early newt survey is needed.
Ancient (or “scheduled”) monuments are historic buildings or sites above or below ground deemed of national importance. They are included in a schedule maintained by Historic England on behalf of the Secretary of State for Digital, Culture, Media and Sport. Scheduled monuments are treated as land charges, so they should show up on a local search during the due diligence stage before acquisition of the site. If they are found to be present, a separate consent will be needed before any work can take place. This consent is separate from the planning process and is issued by the Secretary of State for Digital, Culture, Media and Sport. It is a criminal offence to disturb a scheduled monument without such consent. The regime is set out in the Ancient Monuments and Archaeological Areas Act 1979. As well as the need to get consent before any work starts, if a site includes a scheduled monument it is likely to have to be monitored by an archaeologist. This may bring into play viability considerations. Not only are ancient monuments a creepy setting for horror films, many developers will rightly be spooked if due dilligence reveals their existence.
Much has been written about how to deal with the frightening prospect of work being halted by a third party claiming the benefit of a covenant that the development would breach. Insurance is often the answer, especially when the parties are comfortable that the risks associated are slight. With more troublesome high-risk covenants where insurance isn’t available and there is a prospect of the nightmare scenario becoming true, it is worth considering whether statute could help. Although the process may be complex, if you can show that the covenant is historic and no longer protects a legitimate interest (obtaining planning consent may assist with this) it may be possible to apply to the tribunal to vary or even remove it in order to save the development - and avert a horror show!
The solicitor acting for the developer should easily pick up on any express easements that affect the project and need to be accommodated within the proposed development. Less straightforward to identify is whether anyone has established an implied easement by long use. For example, can the local dog walkers show they have walked along the same path for a sufficient length to establish an easement? Is there an ancient right of way that can be raised from the dead? Site inspection and enquiries are key here. Before acquisition, what does the seller know about the use of the property? Who uses it without the owner’s consent? Is there any evidence of a well-trodden path or of other continual use of the property which has not been otherwise explained? If so, discuss with your solicitor and investigate further.
Town and Village Greens
Town or Village Greens (TVGs) don’t normally strike people with fear - but a developer may see things differently. The Commons Act 2006 allow applications to register new TVGs. These areas have a wide definition so they don’t follow the stereotypical image of a cricket green in a chocolate box style village. The Act defines them as a piece of land where "a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of an least 20 years." This Act has made it significantly easier to register a TVG, which became a regular tactic to stop development. Changes were made in 2013 to tighten the rules to make it harder to successfully register land as a TVG. However, developers should still ensure they address the potential for an application to be made when considering developing recreational land.
So end our tales of terror. Bear each in mind to ensure your development has a happy ending - and enjoy Halloween! But don't have nightmares...
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.