Access Order Case Law Trident House v Yousaf

Access Order Case Law Trident House v Yousaf is a 2025 High Court decision that cuts to the heart of how developers can use the Access to Neighbouring Land Act 1992 to secure temporary access where a neighbour refuses consent.

The judgment also gives clear guidance on how courts should set “privilege consideration” (the payment for the privilege of access) and how strictly they will approach causation in delay-based damages claims.

Background and Site Context

The dispute centred on Galem House, a derelict nineteenth-century former textile warehouse in Bradford purchased by Trident House Development Ltd (“Trident”) in October 2022 for £580,000. A 2022 viability assessment had attributed a far lower value (£29,250), and the building had suffered fire damage, water ingress and long dereliction. Trident’s scheme was to convert Galem House into 77 apartments. The building abuts public roads on two sides, shares party walls on the south and most of the east, and is bordered to the south-east by a car park owned and operated by the defendant, Mr Mohammed Yousaf. A small section of Galem House’s eastern elevation (not a party wall) abutted the car park: this section became the focus of two court claims.

Trident planned to deconstruct the unsafe section of this eastern wall (“the Galem House wall”) and then rebuild a new wall in its place. As the work to demolish the old wall were nearly complete, a figurative battle of the walls commenced. Mr Yousaf erected scaffolding inside his car park along the boundary and began construction of a new wall (the "Yousaf new wall") designed to obstruct any windows in the reconstructed Galem House wall. The Judge found that the Yousaf wall and scaffolding were attached to the Galem House wall and amounted to trespass on Galem House.

The High Court later ordered the temporary "Yousaf new wall" to be demolished “forthwith”. After it came down, Trident finished the deconstruction of the Galem House wall from inside its own site. However, both parties’ building experts agreed that rebuilding the new wall safely required access from Mr Yousaf's car park - at least for some or all of the works.

Two Proceedings Heard Together

The Damages Claim (tort): Trident sought damages for delay to the overall development, alleging that Mr Yousaf’s conduct (including his wall and scaffolding) had forced a stop-start pattern, created an internal exclusion zone, and delayed the program. Procedurally, the claim had its difficulties : on day one of trial Trident sought partial relief from sanctions for late disclosure, and the court split the issues - causation first, quantum later if needed.

The Access Claim (Access to Neighbouring Land Act 1992): Brought by Part 8 in February 2024, Trident asked for an access order to enter the car park to rebuild the wall. The County Court at Bradford transferred the matter to Leeds and then, by consent during trial, to the Business & Property Courts to be heard with the Damages Claim. Critically, both sides agreed draft access terms (save for the amount of privilege consideration): an 8m × 6m exclusion zone within the car park, two mobile elevated work platforms, telehandler movements up to four times per day, two banksmen, and a maximum access duration of 35 days. Mr Yousaf accepted s.1(3) (excessive intrusion) did not apply.

The Legal Questions on Access

The judge framed a structured set of questions under the Access to Neighbouring Land Act 1992, focusing on s.1 (thresholds for access), s.2(5) (privilege consideration), and s.3(1) (effect of an order):

Is the proposed work repair/renewal to the applicant’s land/building, or otherwise for preservation of the land?

Is the work reasonably necessary for that purpose?

If yes (and s.1(3) is not engaged), the court shall make an order, subject to two further “subsidiary” questions.

What advantage will the order confer on the applicant; what inconvenience will it cause the respondent; and what is a fair and reasonable privilege consideration under s.2(5)?

Finally, ought the court to exercise its discretion to include a payment at all?

Findings on the Nature and Necessity of the Works

The judge rejected an attempt to split the planned works into two parts. He treated the deconstruction and rebuilding as one building operation related to a demonstrably unsafe and unstable section of wall. Setting aside proposed new windows in the replacement wall (which the judge addressed separately), he held that renewal work was plainly in view - a materially equivalent new wall being substituted for an old wall - thereby satisfying the statutory purpose of preserving the land/building. He also accepted that, on agreed expert evidence, the work could not be safely executed without access to the car park, meeting the “cannot be carried out or would be substantially more difficult without access” limb.

This approach is important as the court looked at function, not labels. Even with an element of improvement (e.g. adding windows), the core activity was still the renewal and preservation of the Galem House wall. That aligns with the 1992 Act’s purpose and keeps the access order focused on enabling works necessary to preserve the fabric of the applicant’s land and buildings.

Public Interest, Planning Context, and Wider Interests

A striking aspect of the Access Order granted in case law Trident House v Yousaf is the judge’s willingness to weigh public interest and third-party interests when considering privilege consideration.

Bradford’s regeneration context, the planning authority’s stance, and the opportunity to replace an insecure, derelict structure with a viable residential scheme all featured in the balancing exercise. The court emphasised that s.2(5) directs it to have regard to “all the circumstances”, not merely the claimant’s and defendant’s private interests.

This is an important practical example: where projects demonstrably advance public objectives (e.g. regeneration, safety, amenity), expect courts to consider those factors when fixing payments and conditions.

Privilege Consideration: How the Court Set the Figure

Although the parties agreed the mechanics of access, they disagreed sharply on money. The defendant’s valuer argued that privilege consideration should include, among other things, security guard costs and notional professional fees that might have arisen had the parties agreed a private licence. The court rejected both items:

Security guard costs were unnecessary given the agreed two banksmen and site controls.

Professional fees for a hypothetical licence were misconceived, because no such licence existed; the route was a statutory access order.

On the limited valuation evidence available, the judge applied the “broad axe” principle referred to in One Step v Morris Garner, fixing privilege consideration at £3,500 as fair and reasonable in all the circumstances. The court also noted the parties were commercial and that Trident sought access to advance a commercial development.

For cost planners and surveyors, this shows the court’s appetite to strip away speculative or duplicative heads of claim and anchor the figure in practicality, site logistics (duration, frequency of telehandler movements, size of exclusion zone), and broader context.

The Damages Claim: Causation Strictly Applied

Trident’s tort claim for project delay failed at the first hurdle: causation. The court drilled into the programming and sequencing assertions and emphasised that, in a complex development, the evidence needed to prove that a short delay to one element (about 26 days in the deconstruction phase) actually translated into critical path delay to overall completion.

The judge pointed out the scheme would not be completed without an access order to rebuild the wall (agreed by experts), irrespective of earlier events. He highlighted that, once the temporary car-park wall came down, deconstruction finished within about two days, and he underlined the weakness in Trident’s evidence on how that earlier pause supposedly pushed the entire project end date. The result: damages claim dismissed.

The judgment also comments on evidence discipline. Some of Trident’s witnesses were effectively giving expert-style views (on sequencing dependencies and critical path) without the necessary expert footing. The court reminded parties that specialist opinions require expert evidence. That procedural note will matter to project teams litigating delay: get the right experts with proper compliance, or risk your causation case unravelling.

The Order: What the Court Granted

In the Access Claim, the court made the access order in the terms agreed by the parties and ordered Trident to pay £3,500 as privilege consideration. The court reserved costs and consequential matters.

Key operational elements embedded in the order (agreed form) included:

An 8m × 6m exclusion zone within the car park adjacent to the wall line.

Use of two MEWPs within the zone.

Telehandler deliveries/collections up to four times per day.

Two banksmen supervising movements.

Up to 35 days’ access duration.

Download Judgement

Relevance to Party Wall Matters

Although this was not a Party Wall etc. Act 1996 case, the scenario will feel familiar to party wall surveyors.

The 1996 Act includes rights of entry for works “in pursuance of the Act,” subject to notice and conditions; but when works fall outside Party Wall rights, or when safe construction requires access over a third party’s land that the 1996 Act does not authorise, developers often look to the 1992 Act for a court-backed access route.

This judgment confirms that option and shows how the court will shape practical access logistics and modest consideration to enable preservation-type building operations.

Why Access Order Case Law Trident House v Yousaf Matters

Confirms the test for access: If works amount to repair/renewal and are reasonably necessary to preserve the property — and can’t sensibly be done without access — an order should follow unless s.1(3) applies (excessive intrusion).

Sets a pragmatic yardstick for privilege consideration: Courts will exclude inflated or hypothetical items (like licence-only professional fees or unnecessary security) and will apply a broad-brush valuation to reach a fair number. Here, £3,500 was enough for up to 35 days of controlled access with defined plant movements and on-site supervision.

Takes public interest seriously: Regeneration, planning permissions and neighbour amenity do feature in the balance when setting payments/terms. That widens the lens beyond a strict two-party calculus.

Demands rigorous causation proof for delay damages: In complex builds, courts expect robust, expert-led evidence linking the alleged wrong to critical path delay — mere assertions or proximity in time will not suffice.

Practical Implications for Developers and Surveyors

1) Start with designating works correctly. When you plan to replace a dangerous or unstable element (e.g. a boundary wall) with a materially equivalent wall, you can often characterise this as renewal for preservation purposes under the 1992 Act. Keep a clear paper trail: engineering assessments, instability records, photographs, method statements. This echoes the court’s acceptance in Access Order Case Law Trident House v Yousaf that the scheme was preservation-oriented.

2) Nail down the “necessity” evidence early. Agreeing experts where possible can be especially useful. In this case, both sides’ experts agreed that safe rebuilding required car-park access, which carried significant weight.

3) Offer a tightly-scoped access protocol. Courts like defined zones, time limits, traffic management, banksmen, and capped daily movements. The agreed terms here are a model: 8 × 6m zone, two MEWPs, telehandler up to four times daily, 35 days, two banksmen. Expect the court to adopt similarly predictable, safety-forward logistics.

4) Price privilege consideration realistically. Avoid speculative add-ons. A modest figure, grounded in duration, inconvenience, and site use impacts, is more likely to land. The court’s £3,500 outcome shows the order of magnitude for constrained, well-managed access of about a month.

5) For delay claims, bring true experts and critical-path clarity. If you intend to run parallel tort claims, ensure your delay analysis is forensically linked to program milestones, with credible expert evidence (and proper disclosure). The court’s dismissal shows how fast a causation case can fall apart without that rigour.

6) Keep Party Wall matters distinct. Where the 1996 Act’s rights of entry don’t cover what you need, the 1992 Act provides a purpose-built route for preserving works. Surveyors should be ready to advise on both options and when it is advantageous to apply for an access order.

Key Takeaways — Access Order Case Law Trident House v Yousaf

Renewal = Preservation when replacing an unsafe wall. A replacement wall, materially equivalent to an unsafe wall, falls within the 1992 Act’s preservation purpose even if design tweaks (like windows) are contemplated.

Necessity is practical, not theoretical: Where agreed experts say the work cannot safely be done without access, that is decisive. The court won’t force awkward, risky inside-only solutions if they undermine safety.

Privilege consideration is modest and focused: Courts will remove unjustified items (e.g., hypothetical licence fees, unnecessary security) and reach a 'broad-axe' figure commensurate with scope and inconvenience. Here, £3,500 for up to 35 days was fair and reasonable.

Public interest matters: Regeneration and the removal of dereliction can influence the payment calculus. Planning status and neighbourhood benefit are live factors under “all the circumstances”.

Delay damages need firm proof: Without expert critical-path evidence that ties overall completion delay to the alleged wrong, a headline “X days lost” is not enough. Trident’s claim failed almost immediately on this issue.

Draft access protocols early: Offer the court a clear, safe, time-limited operations plan. This will increase the chance of an order and frames the conversation on consideration.

What This Means for Your Project

If you are converting or stabilising heritage/derelict stock in tight urban plots, Access Order Case Law Trident House v Yousaf is a practical template:

Frame your works as renewal/repair that preserves the property’s integrity.

Evidence why external access is necessary (safety, plant, method statements).

Table a well-scoped access plan (zones, supervision, plant limits, duration).

Expect a modest privilege payment if the operational footprint is contained.

Don’t bank on damages unless your delay analysis is expert-led and disclosure-tight.

For surveyors, this case strengthens the advice that where the Party Wall etc. Act 1996 doesn’t provide access rights to a neighbour’s land, the 1992 Act often will - provided the works genuinely preserve the building and the plan is necessary and proportionate.

Conclusion

Access Order Case Law Trident House v Yousaf gives clear, contemporary guidance on using the Access to Neighbouring Land Act 1992 to unlock essential construction access.

The court endorsed a pragmatic, safety-led approach: recognise renewal as preservation, prove necessity, table a tight method for access, and pay a measured privilege consideration grounded in reality - here £3,500. Meanwhile, it sounded a cautionary note on delay claims: causation must be proved with expert precision or it will fail.

If you’re facing a similar stand-off and need to prepare an evidence-backed strategy to secure access - or to robustly shape, cost and defend an access protocol - we can help you plan a strategy that aligns with the judgement in Access Order Case Law Trident House v Yousaf and keeps your project moving safely and lawfully.

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Whether you need support negotiating access, preparing schedules of condition, or applying for an Access Order, we’re here to help.

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For more information on all aspects of neighbourly matters and boundary issues, see a collection of articles in our blog.

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