In a world where green space is increasingly valued for its role in fighting climate change, it makes sense to reuse previously developed sites, often referred to as brownfield land. It may be easier to get planning consent to develop brownfield land than a greenfield site and your development may benefit from existing infrastructure. However, previous uses and other buildings nearby may create problems, so it is vital to investigate the potential site carefully and get your lawyer to advise on any issues before you commit yourself.
‘If you can inject new life into a tired and unattractive site, you may be more popular with local people than if you want to build on open space,’ says Graham Beach, a consultant in the commercial property team with Bailey & Cogger in Tonbride. ‘However, the past life of a brownfield site may have a few surprises to throw in your path, so it pays to look hard at it before you get started.’
Advantages of brownfield development
If a site has already been built on, it may be easier to get planning consent and the principle of development will be established. Your solicitor will be able to advise you about any particular uses allocated to your site in an existing local plan.
You may also benefit from transport links and other infrastructure, with utilities usually already serving the site. This could save costs and may make the completed development more attractive to future occupiers.
The key risk with redeveloping brownfield land is that its past use may have created issues that you will have to deal with as part of the development process.
Historic contamination is an obvious risk, particularly on industrial land, and this may require costly clean-up work. The law on liability for contaminated land is complex and the outcome depends closely on the specific circumstances. The fundamental principle is that ‘the polluter pays’ but, in practice, it can sometimes be difficult to enforce this. If your development plans mean that existing contamination may cause harm, then you will have to ensure that it is dealt with safely. You must get expert legal advice, both on how to identify any possible contamination and how to deal with any that is discovered.
The site’s history may also have left behind less obvious issues, like underground air raid shelters and, in some places, unexploded bombs. It is possible to identify things like this by detailed ground investigations and searches, but it is not cost-effective to do these on every site, so you may need your solicitor to help you assess the risk and decide how far to take your inspections.
Pipes and cables
If there are already gas pipes, water pipes, and electricity cables on the site, you may save money by linking into them. However, pipes and cables will be protected by statutory rights and there may also be binding contractual agreements not to interfere with or build over them. In practice, you will probably need to design your development around existing infrastructure or negotiate (and pay) to move things around.
A growing number of sites now host telecommunications equipment and even if a building on your site has been left vacant, a telecoms operator may still have legal rights to keep apparatus in place. There is a statutory process for getting it removed if you cannot develop around it but this is slow and can be costly if the operator does not cooperate. This is an area where you will definitely need your solicitor’s advice about your rights and the correct procedure.
Rights and restrictions
Another possible issue with a brownfield development is that adjoining owners may already have rights over your site. Rights of way can usually be accommodated if they are spotted early, but a right of light can mean significant limits on the design of a new building. This is a specialised area of law and expert advice is essential. You may be able to negotiate a release of rights in return for financial compensation but there could be serious consequences if you build in a way that interferes with a neighbour’s rights of light.
The same is true if your site is affected by a restrictive covenant limiting development or change of use. In extreme cases developers have been ordered to remove completed buildings, so rights and restrictions are not something you can ignore.
If you are developing a site already surrounded by buildings, physical access may be restricted. On top of this, your planning consent may impose limits on the hours during which you can build and on the hours during which the finished development may be used for certain purposes. These are things you will have to consider, not just when putting together the development programme but also when you come to market the finished site.
If you are intending to change the use of a brownfield site, you should discuss with your solicitor the possibility of nuisance claims from existing neighbours. Simply getting planning consent is no guarantee that you will not run into a dispute over alleged nuisance.
Development in England will soon be required to achieve a ‘biodiversity net gain’, by improving the biodiversity of the developed site compared to its starting condition. This is expected to become law sometime in 2023. The existing state of your site may make this more difficult if the land has already been left to go wild. You are likely to need expert advice on how to deal with this new requirement. You should also check for Japanese knotweed on the site because there are obligations to disclose it and manage any risk it presents, which could be costly.
How we can help
If you anticipate potential problems and plan how to deal with them in advance, you are much more likely to end up with a successful development. Your solicitor can help you spot issues and find ways round them, avoiding unexpected costs and delays.
Bailey & Cogger has offices in Tonbridge, Gravesend, Maidstone, Chatham and Tenterden.
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.