Delivery of a development on budget and on time is key to viability and is affected by many factors some of which will be entirely within the control of the project team and others which will be reliant of the co-operation of third parties. Arrangements may need to be entered into with neighbouring owners to facilitate construction such as rights to light releases, the grant of scaffolding or crane licences, party wall agreements and creation of longer term rights to enable maintenance and provide for access post construction. Needless to say, the sooner that agreement can be reached and documented formally, the better in order to ensure the smooth running and completion of any project.
Whilst there are standard form documents commonly used to effect the release of rights to light or grant, for example, scaffolding and over sailing licences, and it is fair to say that, individually, the documentation is not necessarily complex, an approach to a neighbour seeking consent can often open the door to a much wider discussion not only in relation to money (as inevitably a neighbour will seek recompense in consideration of the grant of the necessary release or permission) but also for reciprocal, or other, consents for the benefit of the neighbouring owner’s land. Consequently it is often this opening up of the discussions, the interaction between the various documents and issues surrounding timing which tend to lead to a rather more convoluted and protracted exercise than is anticipated at the outset.
From our experience of dealing with many neighbourly matters arrangements, these are our recommendations with a view to ensuring that matters proceed as smoothly as possible.
An assessment of the physical development constraints at the earliest stage in the acquisition process as possible is key to identification of what consents will be required. The involvement of the technical team and/or appropriate consultants to carry out an appraisal of a site in order to determine what releases and/or consents will be required in order to facilitate that, alongside the planning consent or application, is, therefore, advisable.
Whilst there may be reasons why a dialogue cannot be opened with any third parties from whom a release or permission is required until after completion of a purchase, discussion should be instigated at the earliest opportunity once the way is clear to that. Clearly if the dialogue involves a number of neighbouring owners, parallel negotiations will need to take place.
Heads of Terms
If time allows, agreement of a set of Heads of Terms for any requisite releases and consents can be of benefit and ensure that considerations such as timing and conditions are addressed and agreed before the documentation is drafted. The focus on this process often gives rise, and turns attention, to a number of important matters which may not have been considered (on the basis that the arrangements are perceived to be straight-forward) and which can be ironed out at an early stage so that the draft documents when produced are as complete as possible in terms of the agreement reached.
Liaison between, for example, any rights to light or party wall surveyors and lawyers can be helpful to ensure that all angles/practicalities are considered both during the negotiation of terms process and subsequently. Client input is also crucial: detail is critical and the contribution from the project team is vital to ensure that the documentation aligns with the scheme consent, construction programme and build methodology.
In the thrust of negotiations with neighbouring owners, it is often the case that rights/restrictions are requested to facilitate the use of neighbouring land and/or a future development of that. Before agreeing to any such requests, advice should be taken as to whether such rights/restrictions can in fact be granted taking into account the nature of the ownership of the site (for example if the interest held is a leasehold one, that may curtail what can be offered) and the existing rights and restrictions affecting the title. If the lawyers dealing with the neighbourly matters are not those who have dealt with the acquisition of the land, there should be a dialogue between the firms concerned to ensure that what is proposed is deliverable.
Given that it is not uncommon for the neighbourly matters discussion to be prompted by rights to light release negotiations, the need to secure such release(s) as soon as possible often dictates the programme for agreement of all of the documentation. Accordingly, it may be that there will be need for an overarching Agreement to be entered into which provides for an immediate rights to light release with completion of any licences or the grant of other rights to occur subsequently as and when required.
The customary development licences include a number of pre-conditions and requirements in relation to such matters as delivery of method statements, insurance and giving of various notices. It is important that the project/delivery team are made aware of, and familiar with, the terms of any licences granted so that they can ensure that compliance with the terms of any licence is “policed” given that it is often the case that such consents can be terminated relatively easily in the event of breach and that could have disastrous implications for a development.
Particular thought should be given to the neighbourly process if a site is close to land/property which is special by virtue of its character, age or use as the owners are likely to seek specific/unusual restrictions and obligations intended for the protection of their holdings. For example, churches will almost certainly seek to impose tight controls on the creation of noise, vibration, dust to prevent/minimise damage/disturbance to the fabric of a building which is both historic and vulnerable. Other neighbours may want limitations on hours of use and the restriction of activities during working times so that a sensitive use (e.g. a theatre, school, hospital, transport hub or hotel) of a neighbouring property is not unduly interfered with. In such cases, the neighbouring owners may have very bespoke stipulations, such as the protection or relocation of artworks or antiquities, which will require specialist intervention the cost of which will be a factor in the negotiations.
Neighbourly matters agreements are a regular feature of developments, particularly in city centres where sites are tight and the construction process is reliant on the co-operation of third parties. The importance of ensuring that the necessary arrangements are put in place in good time to allow the development programme to be implemented without undue delay should not be underestimated and proper attention should always be given to the negotiations in order to make certain that the agreements entered into accommodate the development as planned and consented.