Development sites rarely come along oven ready for new housing. It is often a matter of piecing them together like jigsaws and finding solutions to make them work both in legal and practical terms. So, assuming that a potential site has been identified and the planning position is good or looking favourable for developing housing, where do you start?

Who owns the site?

To bring together all the land needed for the development, the owner or owners of the site must be identified. This might be an easy task, or a difficult one. If the site is a neatly packaged area which is registered in the Land Register of Scotland under one Title Sheet, then bingo! - the owner will be there for all to see. However, if the site is made up of several pieces of land owned by different people, those owners must be found and brought onboard.

Do all the boundaries join up?

Having found the relevant owners, it is essential to establish whether all pieces of the jigsaw fit together perfectly. Title plans and descriptions will need to be checked against ordnance survey plans to ensure the legal title boundaries align with the current position on the ground, and Land Register Plans Reports obtained to uncover any issues. See our 'How to Find the Boundary Line' blog for more discussion on boundaries.

If there are overlaps in the pieces of land owned by those involved in the sale negotiations, that should be relatively easy to resolve. However, if there are gaps, finding the missing pieces of the jigsaw may not be so easy. If the owners of those missing pieces cannot be found, it is then time to consider How to deal with ownerless land as discussed in our previous blog.

Missing pieces can appear anywhere in a site, both bang in the middle and at the fringes. Gaps at the fringes must be handled particularly carefully, as these could potentially cause issues for access.

Can everyone drive on to the site and turn on the lights?

As well as making sure that all the pieces fit together, it is also important to make sure that either the legal boundary aligns with a publicly adopted road, or the title benefits from servitude access rights allowing free passage into the site and connection to mains services.

Alignment with a publicly adopted road brings the advantage of unlimited access for pedestrians and all types of vehicles and makes life a lot easier for utility providers looking to install new service media at the site and to make connections to mains services.

Local authority road adoption plans should confirm whether all parts of an adjoining road, including the verge, are adopted for maintenance by the local authority. See our blog on How to adopt a road for more information.

If there is a gap between the publicly adopted road and the site, or if access to the site is via a private road, servitude rights granted by the owner of the gap or private road will be needed for access and for services installation and maintenance.

Any such servitude rights which already exist must be suitable for the housing development. For example, the rights will need to permit not only the final residents and their visitors to access the new housing, but also the construction traffic delivering construction materials, plant, machinery and equipment to build the houses. If this is not the case, negotiations may need to begin with the owner of the piece of land across which access is taken.

Who and what occupies the site?

Within the site itself, investigations should be undertaken to establish whether there are any other occupiers, or underlying issues which could hamper development.

With rural sites, the possibility of existing agricultural leases and licences will have to be considered. This might be apparent if there are animals roaming about on the site, but even if not, the questions must be asked. Checks must also be made to ensure that there is no protected wildlife on the site. See our blog on how to deal with protected wildlife.

Also, is anyone using the site as an access route? It is important to check for public rights of way across the site, as they cannot be built on, diverted or stopped up unless proper procedures are followed. Any established paths through a site, even if only flattened grass, should be investigated and searches obtained to check that there are no public rights of way across a site. It is also important to check whether the site is subject to any servitude rights, whether written or not. Servitude rights can be established through the use of a piece of land for at least 20 years without objection from the owner, for example, by parking cars on the land.

What lurks beneath?

It may be easy to spot activity overground on a development site, but what is going on underneath will be just as important. Are there minerals reserved to a third party which cannot be disturbed during development? Are there any old water mains, telecoms cables or electricity lines which will have to be either relocated or removed? Searches will be needed from the Coal Authority and utility companies to help ascertain what might be there and where.

And of course, the possibility of underground contamination must be considered, particularly in brown field sites. The title may hold some information on what the land has been used for previously so, for example, an old hospital site would be a red flag, but more detailed expert investigations will be needed to establish what is there and what will have to be done to remediate the situation.

Does the title allow houses to be built?

Most of the land in Scotland has title conditions attached to it setting out what can and cannot be done on the land. It is advisable to check at an early stage if any such title conditions could block or delay a development. For example, it is not unusual in rural situations to see title conditions looking to guard against over-development. Such title conditions are not necessarily deal breakers, but they will have to be analysed and assessed as to their enforceability, and any potential enforcers identified. See our blog on how to deal with problem title conditions for more details.

Is anyone else interested in the site?

Competition for housing development sites is fierce. Developers will be scanning the horizon regularly, watching for any opportunities in the shorter and the longer term. Some will have taken options over land which may come online for housing at a future point. The option itself will not be registered against the title but it will generally be secured with a standard security which will be a red flag on the title about an interested third party.

A developer will have been on the ground to get a feel for the local interest in the site, but it will always be important to back up their findings with enquiries of the owners and searches in the Register of Community Rights to Buy to see if any interest of a community body is pending or has been registered.

The perfect site?

A site zoned for housing development, neatly packaged in one title with a clear red line around it, with no overground or underground interference or issues and no title conditions attached, is the nirvana of development sites but these rarely exist in today's world. Assembling development sites is more challenging today than ever before. It is now about piecing the bits together, patching where necessary and making sure that anyone with an interest in the site is attended to, before then getting on with building the new homes for the new occupiers.


Catherine Reilly

Director of Knowledge (Real Estate)

Lisa Cruickshank

Practice Development Lawyer