Hogan Lovells partner Nicholas Roberts answers some of the key questions on the unique issues when it comes to acquiring and developing land around train stations and railway lines
Who owns the lines and stations?
Network Rail acquired the vast majority of the national rail infrastructure in 2002, stretching out across the country in a complicated and extensive pattern of narrow ribbons. With such extensive boundaries, Network Rail has gained significant experience in dealing with the issues that arise with its many neighbours, but faces serious calls on its resources.
Although Network Rail is the main rail infrastructure owner, a small number of train links are owned by organisations such as Heritage Rail and HS1.
Beyond the infrastructure itself, purchasers and developers should investigate who owns the verges, embankments and boundary features, particularly where new accesses and service media are needed over such land.
Establishing ownership may not be as simple as it sounds. Although all transfers of land in England and Wales must now be registered at the Land Registry, creating a central bank of ownership details which can be searched (by an index map search), this has not always been the case.
Much of Network Rail’s land remains unregistered and this makes ownership more difficult to prove. If an index map search reveals such unregistered land, it is prudent to ask Network Rail whether it can confirm the exact extent of its ownership.
Is there such a thing as railway searches?
There is no particular railway search when acquiring land close to railways and neither Network Rail, HS1 nor any other rail operator provide current information on land use in reply to general enquiries.
However, specific enquiries can be sent to the estates surveyor and manager at Network Rail and, under the Freedom of Information Act 2000, certain information must be provided. By contrast, in the context of the London Underground, a search can be made and the results include details on the proximity of its assets.
Standard enquiries with the local authority should reveal details of railways within 200m of the site, but little more.
A site visit and careful consideration of the title deeds are, in the absence of useful search information, of crucial importance.
What kind of restrictive covenants and constraints do I need to be aware of?
Where Network Rail has disposed of land in the vicinity of lines and stations, restrictions on the use of that land may have been imposed and rights of way granted over it.
These should be considered carefully in order to establish the extent and scope of obligations/rights and whether they will bind future owners.
In addition, it is not uncommon for land close to rail infrastructure to be burdened by utility rights and equipment, as the route of the rail network provides an ideal pathway for connecting various services to different parts of the country.
What are asset protection agreements?
Asset protection agreements are used by the likes of Network Rail where works effecting or permanently altering a line or station are being carried out by a third party (for example a developer).
The fundamental aim of an APA is to protect the safe operation of the railways and the safety of individuals working on them. The agreements typically include controls on the works, access, provision of information and consents.
What notable legislation do I need to be aware of?
The Railway Regulations Act 1842 grants power for railway companies to enter adjoining land to repair accidents and carry out works to any cuttings, embankments, or other premises belonging to them and for the purposes of preventing accidents.
This may impact on the use of neighbouring land and it would be prudent to consider this in working up a development scheme.
The British Transport Commission Act 1949 penalises criminal trespass on railway lines or property which is in dangerous proximity to lines and electrical apparatus.
Railway and station owners typically publish notices warning against such trespass (required in order for the legislation to be effective) and knowledge of the exact location of railway boundaries is particularly important for developers in light of this legislation.
Although not limited to neighbours of railway interests, the Occupiers Liability Acts of 1957 and 1984 are of importance. If a neighbour of Network Rail’s land is responsible for the boundary, a failure to construct and maintain boundary features may result in liability for injuries caused as a result. Notices, warning against trespass, may be a prudent step in preventing such injuries.
Developing next to railways may bring added complexities and risks, but those with the skill and tenacity to overcome them can unlock schemes with unrivalled connectivity and demonstrate true real estate alchemy.
