Research Other Legal Issues

There are other legal issues – outside of pure planning considerations - that can stymie the McDonald’s development. It’s fair to say that these are rare, but nonetheless they are still worth investigating to see if they are relevant to your particular site. Please note, if your site does have such legal issues, then you will need to consult expert advice – all we can do here is highlight some aspects to find out about.

Rights of Way

Go to your local land registry and do a search of the site. This costs around £5 and can be done immediately. Look for any rights of way or any covenants restricting the use of the site. You may need a more detailed history of the site which your land registry can do for you but this costs a little more (around £15-£20, but this probably varies) and will take several weeks. If there is a right of way marked on the land registry plan, seek legal advice immediately. This might be able to prevent the granting of planning permission.

Rights of way can be ‘extinguished’ but this is a complex, legal process and takes several years. For information on this process, see the DTLR’s web pages on www.planning-inspectorate.gov.uk/making_appeals/right_way.htm

You can be sure that McDonald’s will know of any rights of way, because their lawyers will have done a detailed search before the company would consider buying the site. You should also note that, increasingly, McDonald’s are doing planning applications prior to buying a site and the initial land registry search should tell you who owns the site (these days it’s often a property developer selling to the highest bidder).

Rights of way can also come from public use of a particular path for 20 years, but this has to be an unbroken 20 years. Again, if you think such a right exists seek legal advice immediately, as you will have to take action to protect it. The minute that McDonald’s (or anyone else) take over the site and fence it off to do their construction, you have lost the right of way and would have to sue (not advised, against McDonald’s) to get it back. The people of Hinchley Wood in Surrey occupied an unbroken right of way on a McDonald’s site and parked caravans on it for 18 months. There was nothing that McDonald’s could do about it (although they tried), and the company eventually gave up and withdrew from the site, and had to write off the £ millions that they had invested in the site. (See our later pages on how to occupy a site).

The Rambler’s Association have considerable knowledge and experience of rights of way issues, and may be able to provide useful advice. Contact them on 020 7339 8500.

Type of Road

Public roads are maintained by the local authority, private roads are maintained by those who own the properties in them and unadopted roads are neither private nor maintained by the local authority. Planning permission cannot be granted by the council for developments in private roads. In the case of an unadopted road, seek legal advice as it may be that for some historical reason some resident(s) or other property owners have a veto over any development. This latter situation is very complicated, and it can be difficult to ascertain the exact situation – if any part of the development is in an unadopted or private road then seek legal advice immediately.

Listed Buildings

There are two types of listed building, national and local. National listed buildings are granted their status by the Department of Culture, Media and Sport and local listed buildings are those of local interest that have been ‘listed’ by the local council.

If the building is a national listed building there are restrictions on the ways in which it can changed or developed. Your local council’s Unitary development Plan (UDP) should set out its planning policies for locally listed buildings in your authority.

If the building is not listed, but you think it should be then see the Government’s Planning Policy Guidance PPG15 which sets out the criteria for listing, which are:

Architectural interest, including design, decoration, craftsmanship, important examples of particular building types and techniques, and significant plan forms.
Historic interest – illustrating important aspects of the nation’s social, economic, cultural or military history.
Close historical associations with nationally important people or events.
Group value – especially where buildings comprise and important architectural or historic unity or a fine example of planning.

Generally, buildings after 1840 are less likely to gain national listed status unless it can be identified that they are "buildings of definite quality and character".

More details on the listing process and how to apply can be obtained from the Department of Culture, Media and Sport.

If you think you have a strong case for listing based on the Government’s criteria, then you should contact your local council’s conservation officer to seek a preservation order while the listing process is going ahead. This will prevent any development work being done until the listing status is achieved. However, if a preservation order is used and the building isn’t granted listed status, then the developer can claim costs from the council (e.g. for lost business during the period), so be aware that councils do not implement such orders lightly. You will need a good case for listed status to convince them.

Your local history and heritage societies should be able to advise you on sources of local information and also whether you have a reasonable case for listing (or not). Generally, it would be surprising that a building worthy of national listed status had escaped their attention, but nonetheless ask them – because at the very least you still might be able to get local listing (but fully expect to do the local history research yourself).

Trees

Trees often grow in inconvenient places for developers, and McDonald’s will fell those that get in their way. Not all types of trees are considered worthy of preserving. If there are trees on your site, you should consult both the local authority’s tree officer and also the councillor who is responsible for the Environmental portfolio. There just might be some trees in inconvenient places that are worthy of a preservation order, which your tree officer can do quite easily.