Access orders and the case of Trident House Development Ltd v Yousaf

The High Court decision in Trident House Development Ltd v Yousaf [2025] EWHC 344 (Ch) offers a rare insight into how access orders under the Access to Neighbouring Land Act 1992 are to be approached in the context of a redevelopment.

Background

Trident acquired Galem House, a derelict former warehouse in Bradford, intending to redevelop it to create 77 apartments. This was to form an important part in Bradford’s regeneration. Mr Yousaf owned an open piece of land to the south east of Galem House, which he used as a car park.

A small section of Galem House’s elevation was a wall which touched a lower level wall in Mr Yousaf’s car park. The Galem House wall was in poor condition so Trident wanted to rebuild it. It was proposed that the rebuilt wall include windows. Mr Yousaf objected to this, arguing that the installation of windows would have a negative impact on his ability to re-develop the car park in the future.

Bradford Metropolitan District Council served Trident with a notice which stated that the Galem House wall was in a dangerous state and required Trident to take immediate action to remove the danger. Trident accepted that the wall was unstable and commenced demolition works. These had to be undertaken from the Galem House side because Mr Yousaf refused access from the car park.

During the process of demolition, Mr Yousaf erected scaffolding on his land and built a new wall on top of the existing car park wall, with the aim of obstructing any windows that were created in the Galem House replacement wall. The scaffolding was attached to the Galem House scaffolding and the wall attached to what remained of the Galem House wall.

Trident sought an interim injunction, requiring Mr Yousaf to demolish the new wall, and damages. An injunction was obtained, the wall demolished, and the scaffolding taken down, following which Trident removed the remaining portion of the Galem House wall. It was agreed by the parties that the new Galem House wall could not be built safely without access from Mr Yousaf’s car park and so Trident sought an access order under the Access to Neighbouring Land Act 1992.

The Access to Neighbouring Act 1992

The Access to Neighbouring Act entitles an applicant to seek an order for access over neighbouring land for the purpose of carrying out works to the applicant’s land where:

• the works are reasonably necessary for the preservation of the whole or any part of the applicant’s land; and
• the works cannot be carried out (or would be substantially more difficult to carry out) if access to the neighbouring land is not granted.

An access order will not be granted where the court is satisfied that, if it were to make such an order:

• the works would interfere with the use or enjoyment of the land by the respondent or any other person; or
• the works would cause hardship to the respondent or anyone in occupation
• to such a degree that it would be unreasonable to make an order.

The Act doesn’t set out in detail what works are reasonably necessary for the preservation of the land but does make it clear that the following works will be treated as reasonably necessary:

• basic preservation works, which includes maintenance, repair or renewal of buildings, structures, drains, sewers, pipes or cables, cutting back hedges, trees or shrubs, and clearing ditches;
• works that the court thinks are fair and reasonable in all the circumstances of the case, even if they incidentally involve making alterations, adjustments or improvements, or demolishing the whole or part of a building or structure on the land; and
• where works are reasonably necessary for preserving land, anything that is required for, incidental to, or consequential on carrying out those.

The Court’s decision

The High Court accepted that the erection of scaffolding and a wall tied to the Galem House wall amounted to trespass and nuisance. However, it dismissed Trident’s damages claim on the basis that Trident had not properly established that it had suffered loss as a result of delays caused by Mr Yousaf’s actions.

The court then considered Trident’s claim for an access order. The judge considered in detail whether he had the power to make the access order and whether to make provision for Trident to pay Mr Yousaf for the privilege of accessing the car park. It was found that:

• the work on the Galem House wall should properly be characterised as renewal – one wall was to be replaced with a materially equivalent wall;
• the works were reasonably necessary because the wall was unsafe and unstable and, if the works weren’t carried out, Galem House’s structural integrity may be at risk;
• the proposed inclusion of windows in the new wall was a “by-product” of the works rather than the principal purpose of them;
• there was no evidence that the windows would have any impact on Mr Yousaf, his car park or its value – the car park was an open piece of land and there was no evidence that Mr Yousaf had plans to develop it; and
• notwithstanding the proposal to include windows in the new Galem House wall, it was fair and reasonable to regard the work as necessary and to grant the access order bearing in mind the safety concerns, the fact that the Galem House redevelopment formed a significant place in Bradford’s regenerations, the fact that the project couldn’t be completed without the windows (since that was what the planning permission provided for) and that the impact to Mr Yousaf would be minimal.

An access order was granted and the court found that it would be fair and reasonable for Trident to pay Mr Yousaf consideration for the privilege of access as Trident was developing Galem House for its own financial advantage. In view of the limited valuation evidence available the court took a broad brush approach and ordered that Trident pay £3,500 to Mr Yousaf.

Practical implications and takeaways

The decision offers valuable guidance on how access orders are approached under the Access to Neighbouring land Act 1992 and provides a number of useful takeaways for property developers seeking to obtain access to neighbouring land:

1. Developers shouldn’t shy away from “incidental alterations” within renewal works – the fact that elements of the works are improvements does not automatically defeat the entitlement to an access order, as long as the primary character of the work is repair.
2. The rights afforded by the Act, in tandem with this decision, can serve as helpful leverage in negotiations with a stubborn neighbour.
3. Robust technical and expert evidence is essential – in Trident the court relied heavily on the expert evidence demonstrating danger, necessity, and impact.
4. Where an access order is made the assessment of consideration will likely be pragmatic – where the works are a relatively small component of a larger development, courts may take a board brush approach and minimal consideration ordered.

If you are seeking to undertake renewal works which include alterations, and are struggling to get consent from the owners of neighbouring land, or are unsure if the primary character of the work will remain as repair, our Property Dispute Resolution Team are on hand to support so please do contact a member of the team: ldrteam@wslaw.co.uk.