Avoid landing in legal hot water

    Whether you are an experienced property developer or not, you may unwittingly face legal complications in the planning and progression of a project. Bill Bidder – a property law specialist and head of IBB solicitors’ real-estate practice – provides some top tips to help developers avoid landing in legal hot water.

    Environmental risk

    Ensure you are aware of potential contamination risks when you buy and sell land (including risks of contamination leaking off the site into a groundwater or a watercourse). If you cause or “knowingly permit” contamination then under the statutory contaminated land regime, the enforcing authority can look to you to pay the costs of remediation – and you can remain liable even after you have sold the land. Even if you are not aware of contamination, you may still be liable for remediation costs as an owner or occupier.

    To mitigate this risk, negotiate a purchase contract which allocates liability in case of enforcement proceedings, as DEFRA guidance requires an enforcing authority to take account of agreements on liability. However, this will not exclude liability in all cases, so you will need to carry out appropriate pre-contract due diligence to assess potential risk.

    Rights of light

    If there are buildings around your site and the light reaching the windows would be reduced by your development, the owners may be able to obtain significant damages or an injunction. An extreme case, such as an injunction, may force you to stop building or even to knock down the offending section of the building.

    If there is a risk, do not approach the owners but instruct a rights of light surveyor (and solicitors) as soon as possible to assess the situation. Insurance may be available; if not, then the best options would be to negotiate with the neighbours or revise the scheme.

    Party wall awards

    If you are carrying out works near to or on a party wall (which could include the wall between units inside a building), then you will need a party wall award before starting the works. You will need to give prior notice informing the neighbour of the intended work, and the neighbour may agree to or dispute the works. Surveyors will then need to be appointed. If the initial notice is invalid then the neighbour can obtain an injunction stopping the works until the procedure is complied with, so early engagement is key.

    Crane oversailing

    An owner of land also owns the airspace above that land – and unauthorised entry into this airspace is trespass. If a development requires a crane’s jib to swing into the airspace of land you do not own (including highways land), then a ‘crane oversail licence’ needs to be agreed with that adjoining landowner. Without this the oversail will amount to a trespass, and the landowner can obtain an injunction preventing the same (and does not need to demonstrate that any damage has been caused).

    To avoid possible costly delays, developers should assess where the jib will need to swing during construction works early on, and make a reasonable offer to the adjoining landowner(s) to agree a crane oversail licence.

    IBB-Bill-Bidder
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    Bill Bidder

    01895 207821

    Bill.bidder@ibblaw.co.uk

    ibblaw.co.uk

     

     

     

    This article was first published in the December/January issue of the Professional Housebuilder and Property Developer.

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