Plugging the gap - unlocking access to development sites

"Plugging the gap" describes solving the problem of a gap in ownership or rights at the boundary of a development site that blocks the access needed to reach it. The gap, commonly known as a ransom strip, is a problem that cannot be ignored and can be expensive to fix.

Housing developments often require assembling several land titles into one site, and because they frequently combine adjoining parcels with different ownership histories, gaps are a particular risk. The gap may be owned by the neighbouring owner or a different third party altogether. It has also been known for sellers to retain a strip when selling their land with the aim of holding future development to ransom: in the case of Leafrealm Land Ltd v City of Edinburgh Council, the developer tried to argue that a boundary wall was located in a position which left them with a ransom strip

Why unlocking access matters

Housing development sites typically have little or no history of housing, so they were never designed to accommodate the traffic that comes with new homes — homeowners, visitors, bin lorries, workmen, delivery drivers, construction vehicles — or the utilities pipes and cables needed to service new homes. If the access strip at the site boundary is not owned by the developer, all vehicles, pedestrians and service media need a right to cross it.

It is critical that the site's entrance and exit connect to a public road without an intervening ransom strip, since a single unresolved gap can delay or even stop an otherwise viable project. If constraint only affects part of a site, it can still disrupt any planned phasing of the development, forcing programming to be adjusted to delay the affected phase until a solution is found.

How ownership status shapes the solution

The right approach to a potential ransom strip depends heavily on land ownership: whether the strip has a known, identifiable owner, whether it belongs to no one at all, and how that owner (if any) chooses to respond. Identifying the owner of the strip is therefore a key first step, as the available options differ depending on whether an owner can be found.

Where the owner can be found

Four main options are available:

1. Buying the strip outright is the cleanest route but can be expensive depending on the parties' relative bargaining power. Where the strip is the only way to unlock the site, its owner may seize the chance to name a price, and ransom payments have been known to reach six figures.
2. Negotiating a servitude right of access for noting on the land title instead of buying the strip is another option. Care is needed to ensure the granted rights cover all intended uses including, for example, construction vehicles, which may not be automatically included, and the installation of services connecting to the public road. Owners of the strip may also try to cap the number of houses permitted to use the access, which can be problematic if planning permissions or development plans later change and more houses are built than originally planned.
3. Where a permanent deal cannot be reached quickly enough, a temporary or licensed access arrangement — such as a time-limited licence or a servitude restricted to the construction period — can allow enabling works and initial plots to proceed while negotiations for a permanent solution continue. This does not resolve the underlying ransom strip issue, so the terms must be checked carefully to ensure they cover construction traffic, plant and services installation, and will not be withdrawn before a permanent solution is in place.
4. A prescriptive right of access may already exist if the site owner has taken access without the strip owner's consent, uninterrupted, for at least 20 years — though the extent of any such right may be limited to the type of access and route actually used over that period.
5. If the strip owner refuses to sell or grant access rights in time, seeking local authority adoption of the strip for maintenance is another route; if the local authority declines to adopt it, the developer will likely need to reconfigure the site and find an alternative access.

Where the owner cannot be found

If the strip's owner no longer exists or cannot be traced — for example, where the owning company has been dissolved — the strip falls to the Crown as bona vacantia, and it is possible to apply to the Crown through the King's Lord Treasurer Remembrancer to buy it.

Alternatively, title indemnity insurance can be obtained to protect against a future challenge from the strip's owner, though potential owners must not be approached or alerted to the development plans, as prior contact can rule out insurance as a possible solution.

A further option is to register a prescriptive application to acquire the land, which involves notifying every possible owner that can be found, occupying the land for at least one year, and registering a prescriptive title. However, since the Keeper at Registers of Scotland also carries out notification of possible owners, pursuing this option may rule out the indemnity insurance route.

The risk of doing nothing

Proceeding without resolving the access issue carries serious risk: if the strip's owner opposes the development, they could seek an interdict from a court to halt it, leaving the developer facing court expenses on top of a ransom payment to allow the development to proceed.

Conclusion

Ransom strips can genuinely live up to their name and prove costly. While several options exist for resolving them, the right choice must be made carefully.