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Redevelopment and excessive user: finding the right path

  • United Kingdom
  • Real estate

14-06-2019

Stanning v Baldwin

This case was littered with interesting facts and legal questions but one classic developer issue  which emerged was: if you build out a site for a new use, can you still exercise a historic right of way? The well-known concept of “excessive user” may present an obvious answer but the analysis and response need to be far more subtle.

A former coach house was to be redeveloped into a number of dwellings with underground parking (for cars, rather than coaches). The court was asked to decide if a prescriptive right of way, which arose when the site was in its earlier use, could be exercised once the land was redeveloped. The answer would go to the core of the scheme’s viability.   

The judge carried out a thorough review of the various principles and tests. Whilst certain legal doctrines were drawn on to the ultimate benefit of the developer, such as whether there was to be a radical change in the use of the land and if the new use would be excessive, what is clear from the judgement is that a fact-specific evaluation must be carried out.

Whilst this is little comfort for developers looking for certainty, it does give a glimmer of hope where something has not played out as intended and a scheme is at risk. One thing is sure - developers should be careful before assuming that any easement will or will not subsist.

Key points

  • just because a property benefits from a right of way, it does not mean that right of way can be used if the site is substantially redeveloped
  • there usually has to be fairly radical change to a property to lose out on a right of way, but this is extremely fact specific
  • as part of due diligence before buying a site, developers should review the basis for all rights of way and, if necessary, take legal advice on the likelihood of that use being challenged and any challenge being resisted

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