Trident House Development Limited v Mohammed Yousaf

In a complex construction project, a claimant must prove that the defendant’s tortious conduct caused delay to completion. It is insufficient to show that particular works were temporarily interrupted. The claimant must establish, on the balance of probabilities, that the interruption delayed dependent operations and the project’s completion.

Under the Access to Neighbouring Land Act 1992, replacing an unsafe wall may constitute renewal and preservation work. Alterations or improvements, including windows, may be treated as incidental where they arise out of, or are a by-product of, the preservation work. An access order is mandatory where the statutory conditions are satisfied and the statutory exception is not engaged. Privilege consideration must be fair and reasonable having regard to all the circumstances, including third-party and public interests.

Trident was redeveloping a derelict former textile warehouse into 77 apartments. The defendant owned an adjoining car park. After Trident began deconstructing an unsafe wall adjoining the car park, the defendant erected scaffolding and a structurally unsafe wall which trespassed on the claimant’s land and constituted a nuisance. The obstruction was removed following an interim mandatory injunction.

Trident claimed damages for alleged delay to completion and sought an access order under the Access to Neighbouring Land Act 1992 to enable construction of a replacement wall. The damages trial was confined to causation. The access claim raised whether the works were preservation, repair or renewal works, whether proposed windows were incidental alterations, and what consideration should be paid for access.

1. Damages claim. The claim was dismissed for failure to establish causation. The relevant question was whether completion would have occurred earlier but for the defendant’s tortious conduct. Temporary interruption of works did not establish project delay.
2. In a complex development, sequencing and dependencies cannot safely be inferred merely as a matter of logic. The claimant had to prove that delayed work affected dependent operations and ultimately delayed completion. The contemporaneous programmes of works did not show that the relevant operations or the steel-frame redesign were delayed by the defendant’s conduct. The evidence instead pointed to delay arising from the refusal of access to the car park, rather than from the admitted trespass and nuisance.
3. Evidence about construction sequencing and dependencies involved specialised knowledge. The court proceeded on the assumption that the project manager’s evidence was admissible, but gave it limited weight because of inconsistencies and the absence of documentary support. The ordinary factual causation test was not satisfied.
4. Access claim. Building a replacement for the unsafe and unstable wall formed part of a single building operation and was renewal work, and was reasonably necessary to preserve the building. The proposed windows were an incidental alteration under section 1(4) because they were a by-product of constructing the replacement wall and did not serve an independent purpose of significance in the context of the preservation work.
5. The statutory conditions for an access order were met. The court was required to make the order because the statutory exception concerning unreasonable intrusion was not relied upon and the agreed evidence established the necessity of access.
6. Privilege consideration under section 2(5) required consideration of all the circumstances, not merely the parties’ interests. The likely financial advantage to the claimant was given very limited weight. The defendant’s inconvenience, third-party interests and the public interest in the regeneration project were considered. Applying a broad assessment, fair and reasonable consideration was £3,500.
7. The damages claim was dismissed. An access order was made in the agreed terms, with payment of £3,500 by the claimant. Costs and consequential matters were reserved for further submissions.