Every developer knows that time is money. A site that sits idle while legal issues are being resolved can mean increased interest payments, missed build seasons, and funders losing patience. While delays are not always avoidable, our experience acting for developers, investors and landowners across Kent and the South East of England, is that most delays could have been prevented with earlier legal input. Here are some of the recurring issues and how to stay ahead of them.
A scheme is only as good as the title underneath it. Missing or defective easements and restrictive covenants as well as other title issues can all bring a project to a halt while they are investigated, negotiated or insured around. It is worth remembering that planning permission does not override private property rights. A full planning consent is no guarantee that a covenant will not still stand in the way of the proposed works. We also regularly see titles that require the consent of a former landowner, an estate, or a neighbouring occupier before development can proceed. Tracking down the right party (and persuading them to engage) can take far longer than clients expect. Getting a title review undertaken properly at the outset, rather than once heads of terms are already agreed, buys time to deal with these issues long before completion is on the horizon.
Many developments rely on access over land in someone else’s ownership, or on rights to lay and maintain services such as drainage, electricity or telecommunications. Where a site fronts an unadopted road, or a new junction is needed, agreements with the highway authority and any affected landowners can take months to put in place and should never be left until late in the process. It is not unusual for a site to have planning permission and funding lined up, only to find that construction cannot actually start because the legal rights to reach it are not yet secured.
Getting planning permission is rarely the end of the story. Many schemes come with further obligations attached, whether under a Section 106 agreement or through pre-commencement conditions. The conditions must be formally discharged before any works can lawfully begin. Agreements can also be slow to negotiate, particularly where affordable housing or infrastructure contributions are involved, and discharging conditions with the local authority often takes longer than the development timetable allows for if it is not planned for from day one.
Where land has previously changed hands subject to an overage or clawback arrangement, the trigger events need to be understood well before they become relevant, as does the mechanism for calculating any payment as well as who is responsible for paying it. Overage clauses are notoriously easy to draft badly. A poorly worded trigger can lead to lengthy disputes over whether it has actually been triggered, usually at the point in a project when the parties can least afford this distraction.
Contamination, unstable ground, or the presence of protected species can all throw a development timetable off course. Once a concern has been identified, the investigation, reporting or remediation that follows is rarely straightforward. Carrying out proper due diligence before committing to a site, rather than after exchange, means these risks can be priced in and planned around rather than discovered too late to do anything about them.
Once on site, the quality of the paperwork underpinning the build matters just as much as anything that came before it. A poorly drafted building contract, unclear appointments, or disputes over variations, payment or delay can all slow a project considerably, and it is far cheaper to get this right at the outset than to unpick it mid-build. Funders add another layer, since lenders typically impose their own conditions relating to title, planning and pre-completion matters. These do not always sit comfortably with a developer’s own timetable, and early conversations between the legal team and the funder go a long way towards keeping them realistic rather than letting them become a bottleneck later on.
None of the issues outlined above need be fatal to a development project. If left unresolved, though, they have a habit of causing exactly the kind of delay and cost that developers are trying to avoid. Involving a solicitor early, ideally before terms are agreed, means these points can be worked through alongside the commercial and planning side of a scheme, rather than left to potentially derail it or significantly delay the matter once matters are already underway.
If you are considering a development project and would like advice, please contact Alex Walters on 01732 375303 or email [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
