Easements – The art of creating access to new build properties and developments

If someone was to ask you what the most important characteristics of your property are, it would be a while before you got down the list to actually being able to access it. However, it is one of, if not, the paramount consideration for lawyers drafting a document and for developers when applying for planning permission or building a property; does it have sufficient access for its purpose?

The issue is a recurring nightmare for homeowners and developers alike, because obtaining adequate access can be a lesson in negotiation, compromise and attention to detail.

A lot of the work that I do is development work, from single plots of land to whole developments, and I have seen all sorts of issues relating to access threaten to scupper a deal. I have seen people try to grant access over land they do not actually own but claim they do, grant access over land that they know belongs to other people without permission, try to obtain access over common land and even over rivers(!) and yet it never fails to surprise me that even the most simple access roads can be fraught with difficulties and complications.

What may appear as simple access on the ground can often be a result of hours of negotiation and meticulous drafting, just to allow someone to drive over a patch of grass or a road. The Court of Appeal has been busy lately considering some important decisions on this very subject, which shows that if it’s not done right the first time, it will cost you later.

The recent case of Shaw v Grouby & another [2017] EWCA Civ 233 concerned a driveway belonging to a manor house, over which three properties were granted a right of access. The right was granted over the driveway coloured green for the purpose so far as it was “necessary to obtain access to the Property” (Property in this case being one of the three houses).

The Property abutted the driveway with a fenced boundary installed by the developer, with the owner of the Property having access through a gap in the fence, which was later replaced by a wall by the owner of the Property. The wall changed the position of the access to be closer to the manor house and the owner of the manor argued that all that was “necessary” was use of the driveway to the previous point of access (being the shortest route from the highway); the court disagreed.

The court determined that it is well established that how much of the driveway is granted access over depends on the construction of the transfer and that the driveway, in this instance, was coloured green in its entirety. Therefore, the access was granted over the entirety of the driveway and if it was intended to be any other way then the transfer should have said so.

A case that reached the Court of Appeal, and was assumedly of great importance to the owner of the manor house to get that far, was lost on the basis of some green colouring and the drafting not granting the access that the owner wanted to grant.

It is imperative when drafting transfers, creating plans and applying for planning permission that these issues are considered and addressed with clear instructions and intentions at the earliest opportunity. Instruct your solicitor from the beginning and talk through these issues with them, because in the long run it may save you a lot of time and money.

At Leeds Day we pride ourselves on being there for our Clients for practical as well as legal advice.  With our extensive experience we can anticipate these issues and provide advice to help you mitigate the risks of them occuring.

Please either email property@leedsday.co.uk or telephone 0844 567 2222 and ask to speak to a member of our Commercial Business Team who will be happy to help.

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