Access to development: minding the gap

When considering the opportunities for the development of land, one of the first matters to check is whether the land abuts a public highway at its intended points for access and servicing.

Unregistered land in unknown ownership intervening a registered title boundary of land and the public highway is a surprisingly common issue.

Here are a few things a landowner may wish to consider to address this issue when preparing land for sale:

1. Are you aware of any gaps?

   Check that your title plan accurately reflects the boundaries “on the ground”. A developer will undertake thorough title investigations and searches to establish ownership of land and the status of roads. Where possible, overlay the title plan with a highways plan to make an accurate assessment. Pre-empting and actioning any issues now will make for a simpler and quicker sale.

2. Is the title plan correct?

   The position of the title boundary will depend on the terms of the relevant pre-registration documents, and the Land Registry will complete a first registration without making further detailed enquiries as to the precise location of the boundaries. Therefore, a title plan reflects only what the Land Registry concludes to be “a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping” (Land Registry Practice Guide 40). If you think an error has been made in the mapping, it may be possible to persuade the Land Registry to correct the mistake. However, it is usual that a Land Registry plan will show only a “general boundary” and a general boundary does not determine the exact line.

3. Are the highways records correct?

   It may be possible to invite the highways authority to inspect a potential “gap”, and to amend their records to confirm the designation of public highway right up to the title boundary.

4. In the event of development of the land, could the access be re-designed so that roads and services do not need to pass over any gap?

   This is likely to depend on a variety of technical matters including the topography of the land and cost.

5. Have you been in exclusive occupation of any gap between the title boundary and the public highway for at least 12 years?

   It may be possible to make an application to the Land Registry for adverse possession, depending on available evidence, to obtain a possessory title. The question then will be whether a possessory title to part of the land will be sufficient for a developer, and it is likely that this would need to be combined with a title indemnity insurance policy. Land Registry applications can take some time to process, so it’s a good idea to submit any relevant applications at an early stage.

6. Have adequate rights of way over the gap been acquired over time?

   Acquiring rights by long use is complex and will depend on a variety of factors including how long the right of way has been exercised and whether it has been without interference. If an easement is established, developers are likely to question whether development would constitute an excessive use of it. If you think you might be relying on rights established over time, then consider taking further advice on this.

7. Is title indemnity insurance available?

   It may be possible to obtain an insurance policy to cover the risk of a third party claiming an interest in the gap. A policy often provides cover in respect of the costs of obtaining a private right of way over the gap, obtaining an alternative access, acquiring the gap, or pursuing a Section 228 procedure (see below). It may also cover the difference in market value with or without the defect. However, insurers often prefer insurance to be put on risk following the outcome of a planning decision, as this often reveals any third-party objections. The insurer will also look at the gross development value (‘GDV’) of the land when calculating the premium. Therefore, the likely GDV and whether insurance is sought pre or post planning will impact cost. Careful consideration should also be given to actions which might invalidate an insurance policy, which means other possible solutions (such as contacting the Land Registry or the highways authority) then become excluded.

8. Do one of the following presumptions apply?

   These are helpful and worth considering, but are rebuttable:

• Ad medium filum. This presumption states that the boundary of land abutting a roadway extends up to the middle point of the road. This will apply to the subsoil if the road is highway maintainable at public expense.
• Hedge to hedge. It is presumed that a highway extends to the whole width of the space between fences or hedges on either side of the highway and is not limited to the made-up part of the roadway.
• Hedge to ditch. Where two properties are divided by a hedge and a ditch or a ditch and a bank, there is a presumption that the boundary is along the opposite edge of the ditch from the hedge or bank. This is based on the principle that an owner, standing on his boundary looking inward, dug his drainage ditch within his boundary, threw up the soil on his home side, and then planted a hedge on the mound.

9. Could an application be made in the future for adoption as public highway via Section 228 of the Highways Act 1980?

   This procedure may be applied where street works are undertaken and the highway authority gives notice that the road is to become adopted highway. If a third-party landowner objects within prescribed timescales, the highway authority can still apply to the court for an order declaring the street as adopted highway. This power is useful where there is no known landowner and a Section 38 process cannot be used.  There is a commercial risk associated with this solution as the procedure would only be started at a later date when works had been undertaken. There is also no guarantee that the highways authority would co-operate and agree to the vesting, although it may be possible to contact the highways authority to seek an indication as to whether they would cooperate with a Section 228.

This is by no means an exhaustive list. Consider whether it would be helpful to seek legal advice early on in any transaction to assist in preparing land for sale and development.