CoStar Column Halloween Special – the top nightmares for property developers

by Paula Abrahamian


With Halloween fast approaching, Paula Abrahamian, a Partner in the commercial real estate team at City law firm Fletcher Day, explores the biggest nightmares for property developers.


Buying or developing land can be a stressful process. But when nature interferes the problems and associated costs can multiply. Here is a whistle stop tour of some of the horrors you can come across when buying or developing land.

Japanese Knotweed

Japanese Knotweed is the most invasive plant in the UK. It is a perennial plant that spreads rapidly by its roots and stems and is extremely difficult to eradicate from land. It can grow up to 10cm a day between the months of April and October. Its vigorous roots and top growth penetrate foundations and concrete, causing considerable damage.

Knotweed and other invasive non-native species ('INNS') are problematic as they can:

  • Cause physical damage to buildings and land, which affects value, marketability and insurability;
  • Be expensive and time-consuming to remove, treat and dispose of; and
  • Result in criminal and civil liabilities for owners, occupiers and persons handling the INNS if they do not do so in accordance with the law.

Knotweed is not usually covered by environmental reports so buyers of land should consider obtaining a specialist report including an estimate of removal costs before exchanging contracts.


Bats

All bat species, their breeding sites and resting places are fully protected by law (they are European protected species). Owners of land will commit an offence if they:

  • Deliberately capture, injure or kill bats; or
  • Damage or destroy a breeding or resting place.

This could result in imprisonment of up to 6 months or an unlimited fine.

Activities that can affect bats include:

  • Renovating, converting or demolishing a building;
  • Cutting down or removing branches from a mature tree;
  • Repairing or replacing a roof;
  • Removing habitats such as hedgerows, watercourses or woodland; or
  • Using insecticides.

Where there is potential for land to be occupied by bats, buyers should be advised to obtain a bat survey which will confirm the type and number of bats and how they are using the land or area. This will help to plan how to avoid harming them.

If harming bats or their habitats cannot be avoided, a mitigation licence can be obtained from Natural England.

Newts

Great crested newts are another European protected species. Potential offences that land owners could be found guilty of include:

  • Capturing, killing, disturbing or injuring great crested newts;
  • Damaging or destroying a breeding or resting place; and
  • Taking great crested newt eggs.

Again, each offence could result in imprisonment of up to 6 months or an unlimited fine.

Building and development work can harm great crested newts and their habitats if, for example, it:

  • Removes habitat or makes it unsuitable;
  • Disconnects or isolates habitats;
  • Changes habitats of other species, reducing the newts' food sources; or
  • Increases the numbers of people, traffic and pollutants in the area or the amount of chemicals that run off into ponds.

If any of the above cannot be avoided, a licence from Natural England would be required to avoid liability.

Tree Preservation Orders ("TPO's")

A TPO is an order made by a local planning authority (LPA) in England to protect trees in the interest of amenity value to local communities including those under threat from new building developments. They can be made in respect of an individual tree, groups of trees or woodland.

A TPO prohibits any of the following actions to be carried out to a protected tree without the LPA's consent:

  • Cutting down;
  • Uprooting;
  • Topping;
  • Lopping; or
  • Wilful damage or destruction.

If consent is granted, it can be subject to conditions.

The following permitted activity will not require any consent.

  • The cutting down, topping, lopping or uprooting of a tree:
    • that is dead;
    • to comply with statute;
    • so far as may be necessary for the prevention or abatement of a nuisance;
    • to carry out development for which planning permission has been granted; or
    • by or at the request of the Environment Agency;
  • The removal of dead branches from a living tree;
  • The cutting down, uprooting, topping or lopping of a tree where such works are urgently necessary to remove an immediate risk of serious harm;
  • Works to trees in accordance with a plan approved by the Forestry Commissioners; or
  • Works that are subject to a felling licence.

Landowners will be guilty of an offence if they cut down, uproot, wilfully damage or destroy a tree in contravention of a TPO.

These are just some of the considerations to bear in mind when buying land or developing it. They all bring to light the importance of undertaking the right level of due diligence and investigations before committing to purchase a property. In the words of Albert Einstein "look deep into nature, and then you will understand everything better".

Paula Abrahamian is a Partner in the commercial real estate team at Fletcher Day, a City law firm.

This article was first published by CoStar on 18 October 2019.


For further advice, or to discuss your case, please contact Paula Abrahamian.

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

25 October, 2019
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