Land for development

3.1 Greenfield sites

As part of planning policy, the statutory development plans will seek to identify areas of land considered suitable for development and indicate the type of development which the planning authority would like to see taking place. There is, therefore, an interplay of market demand and statutory planning in locating and securing development land. The UK government’s National Planning Policy Framework (NPPF) for England (DCLG 2012) requires local planning authorities to identify and update annually within their development plan five years’ supply of developable sites for housing schemes, plus a minimum ‘buffer’ of 5% to allow for ‘choice and competition within the market for land’ (para. 47). What is Maidenhead and Slough's development plan?

In some countries it is established government policy that priority should be given to reusing previously developed brownfield sites in preference to greenfield sites (see below). By developing brownfield sites, urban regeneration is encouraged and encroachment into countryside is safeguarded (DCLG 2012: 19).

3.2 Redevelopment

Regeneration initiatives have been implemented in many UK urban areas in the 1990s and 2000s, and sometimes have required the use of compulsory purchase orders (CPOs) to assemble land for redevelopment.

3.3 Brownfield sites

Government policy in the UK and elsewhere has been to prioritise the reuse of such sites over the development of greenfield sites through the application of strict planning controls in the interests of a more sustainable form of development. However, there may be circumstances where it may be difficulty to give priority to a brownfield site — e.g. because it constitutes an important wildlife habitat or is prone to flooding — without special measures being put in place.

One of the problems associated with brownfield sites is that commonly there is little direct information about former uses at the site. Industrial processes may have resulted in contamination of the land by a multitude of processes, but this is most unlikely to be concluded merely by a visual inspection.

3.4 Infill sites

Separate from brownfield sites is the possibility that land between existing buildings may be suitable for development. Referred to as ‘infilling’ domestic garden land (pejoratively referred to as ‘garden grabbing’), this could be on other open land, former parking or landscaped areas. Most frequently such sites will be in suburban areas, but they can also be in towns and villages.

Problems can arise from land acquisition where garden land may be in several ownerships and one or more owners are unwilling to sell. Obtaining planning consent can also be a problem because of the perceived increase in density and effects on amenity. One way round this might be to demolish an existing building to create more space and allow appropriate access, but care needs to be taken because of the need to cover costs of acquisition, demolition and development. The increase in density required to achieve a return might lead to suggestions of ‘town cramming’ by the local planning authority and residents. It means that development at such sites needs to be treated with caution. The coalition government clamped down on ‘garden grabbing’ shortly after the 2010 general election by removing it from the classification of brownfield land (DCLG and The Rt Hon. Greg Clark MP 2010) but other infill options still remain.

3.5 Encumbrances

While a developer may be in a position to acquire an interest in land, either freehold or long leasehold or an option to buy or lease, the peculiar nature of land and land tenure requires a rather more detailed investigation than broad considerations of size, shape and terrain. The more obvious features of the site, such as shape, may serve for initial consideration of development potential but a more detailed appraisal will require investigations of both physical and legal encumbrances or attributes.

Physical features

Attention is drawn to the following:

size and shape — whether suited to the proposed scheme of development, or what constraints are imposed by physical boundaries;

terrain — its effect on design, layout and economics;

load-bearing qualities of subsoil — the need for piled foundations or stabilisation, or raft in place of strip foundation or pads; existence of subsidence or made ground and unsuitable fill;

underground pipes, cables;

existing buildings, old foundations, retaining walls supporting or protecting the site;

historic remains which are protected by legislation;

contamination from previous use on or near the site.

Legal encumbrances

A variety of legal encumbrances may exist, as follows:

Restrictive covenants. Restrictions on the use of the land can be imposed by a conveyance of the land by some previous owner and ‘running with the land’, and therefore binding on a purchaser. Where such restrictions apply but are outmoded, land law may provide for the discharge of the covenant. This could be subject to payment to the beneficiary (e.g. an adjoining owner of the ‘dominant tenement’ or land for whose benefit the restriction was imposed) equal to the loss which he sustains; i.e. not the value to the person receiving relief from the burden of the covenant.

Restrictions on leasehold land are generally more numerous and more common since one of the reasons for granting leases rather than selling is that the freeholder can retain control over the use and development of land for the benefit of his estate generally, or to secure community benefits. Such covenants are normally a matter of obligation between freeholder and leaseholder. Among the more common are:
- use, e.g. restrictions or prohibition of business uses in residential areas; premises not to be used otherwise than for offices, or particular trades;
- alterations, not to be made without consent; plans of all new buildings to be approved by the landlord;
- assignment and subletting, not to be permitted except by consent of the landlord.

Reservations. A grant of a leasehold tenure may reserve rights to another owner, such as right of way, right of light, rights of running cables or pipes. These will impose restrictions on the size or design of the building, which must be so placed and arranged as not to interfere with rights. Again, negotiations of variations with the dominant owner are possible, and substantial sums might be negotiated for relaxing such reservations. In some cases, such as gas mains, the prejudicial effect of pipes on development results in compensation to the current owner additional to original consideration for the easement.

3. Public rights of way. These can exist across land and legal procedures may become necessary (and be available) for varying or closing public routes. The existence of public rights of way is clearly material to development.

Existing tenancies. In many cases, the existence of tenancies will be obvious from occupation, but this is not always the case, and proper enquiry is necessary. Care may also be needed over service of notice to quit on business tenants. There could be a lengthy time period involved depending on the way in which national laws are worded.

Licences, way leave agreements, leases of easements. Rights over land, such as for cables and pipes, may be granted under a form of licence or lease. The terms of such agreements should provide for the removal or rerouting of cables etc. if required by the owner. It will generally be the duty of the vendor or lessor to disclose the existence of rights, and to indicate whether or not the land is conveyed subject to them.
Boundaries. As with any transfer, the delineation of boundaries and responsibility for fences, walls, especially any retaining wall, embankments and water courses, needs to be clear early on to prevent later disputes over what is conveyed and what liabilities pass with the land.

	Created by paulwillis165 almost 10 years ago

BSc Project Development and Strategy Note on The real estate development process, created by paulwillis165 on 16/12/2015.