With the continuing pressure on supply for land for residential development, developers have to be more resourceful than ever.
Recently, areas next to railways have become more attractive, helped by quieter and less intrusive modern trains. Developers have therefore been able to make a virtue of these brownfield sites as they are often in well-connected locations.
However, railway sites remain in the ‘challenging’ category and require careful consideration. A first issue will be restrictions on building. The need to protect the working railways from damage and disruption means that a developer will need to enter into a basic asset protection agreement (BAPA) with Network Rail to ensure that the developer picks up the associated costs. Often, method statements and other mitigation steps must be put in place as well. The extent of the restrictions will be dictated by the perceived risk of the development, with high-rise developments on the immediate boundary of a main line being at the higher risk level. You would expect Network Rail to require that the covenants are adequately secured by a financial bond. The time and costs associated with this process are factored into the development appraisal.
A second issue is covenants on title. Where sites were previously owned by Network Rail, you should expect to see restrictive covenants reserved, which will need to be considered in the context of the proposed development. These are in addition to the statutory protections. Insurance may not always be an option, so a release from that covenant should be sought where relevant.
A third issue is mines and minerals. Network Rail typically reserves ownership of any mines and minerals that fall beneath land that was previously owned by them. Although there is unlikely to be any legal right (or practical likelihood) that any minerals will be mined, a redevelopment raises the possibility that the minerals will be disturbed without the consent of their owner. A due diligence exercise is required with insurance as a possible solution.
A final issue to consider is the environment. A comprehensive survey should be undertaken at an early stage to check for intrusive plants such as Japanese knotweed, with the associated costs and delays factored in.
Dominic Whelan is a partner in the real estate team at law firm Goodman Derrick