Trident House Development Ltd v Mohammed Yousaf

Hearing dates: 20–24 January 2025

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HH JUDGE Klein

Galem House is a nineteenth century former textile warehouse in Bradford which is being developed by the Claimant (“Trident”) into seventy seven apartments (“the project”). Trident, a special purpose vehicle, bought Galem House for £580,000 in October 2022, although a financial viability assessment carried out for Trident by Saunders Quantity Surveyors in June 2022 had attributed a value of £29,250 to the property. That may be because Galem House stopped being used in about 2000 and became derelict. As the financial viability assessment explains (and as photographs support):

“The building comprises a 7 storey structure with the two lower levels forming half basement levels. The external walls are made out of sandstone with feature band courses, stone window heads and cills and the proportion of the openings give the building a vertical emphasis. Galem House was subject to a significant fire which destroyed the middle third of the building through all the floors resulting in the loss of part of the roof through which rain has entered the building for many years.”

Galem House abuts Grattan Road to the north and Vincent Street to the west. Its southern elevation is a party wall with Sunbridge Apartments, which, in turn, abut Sunbridge Road. Its eastern elevation is mainly a party wall with Woolston Apartments, which, in turn, abut Tetley Street to the east. South-east of Galem House is an open almost-rectangle of land belonging to the Defendant (“Mr Yousaf”) and operated by him as a car park, the entrance to which is adjacent to Sunbridge Apartments on Sunbridge Road. A small section of Galem House's eastern elevation (where it is not a party wall with Woolston Apartments), in the south-east corner, was a wall which abutted the car park. It is this small section of wall (“the Galem House wall”) which is the subject of the two claims between the parties which I have had to determine. The Galem House wall abutted a lower level wall in the car park (“the Yousaf wall”).

It is not apparently disputed (and photographs appear to show) that, to a significant height, the Galem House wall was not built of external bricks. Photographs also suggest that, apart from signage indicating that the car park is being used as such, the car park is an open piece of land – there are no marked car park bays for example – which, where it abuts Sunbridge Road, is defined by a wall which may have been an external wall of a former building. Although no-one has contended that the Galem House wall was a party wall, because of its construction and the photographic evidence to which I have just referred, it may have abutted a former building on the car park.

Trident's development of Galem House has a significant place in Bradford's regeneration. West Yorkshire Combined Authority has committed to making a £1.2 million grant, from the Brownfield Housing Fund, to Trident (if certain pre-conditions are met), and the local planning authority, City of Bradford MDC (“Bradford MDC”), has waived any community infrastructure levy and has not required Trident to undertake any planning obligations under a Section 106 agreement. A Project Overview to support the grant says as follows:

“The project occupies a strategic position within the Goitside conservation Area between the Bradford Learning Quarter (that houses the Bradford College and Bradford University campuses) and the council's primary city centre regeneration area known as “City Village”. The three strategic priority areas of the City village, Goitside and Learning Quarter have the capability of providing some 2,700 new homes out of the current adopted City Centre Area Action Plan's target of 3,500 homes, and the successful delivery of the scheme will contribute to Bradford Council's efforts to achieve this strategically crucial target.

The new homes will make a significant contribution to the Council's strategy of creating affordable and sustainable housing in the city centre in accordance with the adopted City Centre Area Action Plan (AAP), that will also help to address the District's shortage of the right type of housing in the right places to meet Bradford's needs over the next 15–20 years.

…

The scheme outputs and benefits include:

• To restore a priority heritage building comprising of 0.13 acres or 0.053 hectares back into use.

…

• To provide 77 new homes (apartments) in a key priority urban centre.

…

• To create nine new building management jobs delivering 13,624 hours of employment per year.

• To deliver 3 apprenticeships in conjunctions with Bradford University.

• To deliver 4 apprenticeships in conjunction with Bradford College.

• To deliver 100 hours per year of events to promote local businesses and a sense of community to the building residents.”

Bradford MDC initially granted planning permission for the project on 10 May 2023. The permission required development to be carried out in accordance with the approved development plans, which included a plan of the Galem House wall (“the original plan”) showing windows formed overlooking the car park. The original plan included provision for four windows in the Yousaf wall, apparently because, at the time planning permission was sought, Trident believed that the Yousaf wall was part of Galem House. When it appreciated that the Yousaf wall is not part of Galem House, it amended the plan (“the amended plan”) to exclude windows at low level (at the level of the Yousaf wall), but the amended plan continues to make provision for windows in the Galem House wall at higher levels. Trident obtained a variation to its planning permission under s.73 of the Town and Country Planning Act 1990 in December 2023. The amended plan was approved as a plan for the purposes of planning permission. It is uncertain, however, whether the varied planning permission permits the removal of the four windows in the Yousaf wall. So, in September 2024, Trident applied for such permission by way of an application for a non-material amendment to its varied planning permission. That application has not been determined yet by Bradford MDC (although the claim for an access order, which is the second of the claims I have to determine, has proceeded on the effectively agreed basis that any work permitted under any access order I make will not include the formation of those four windows, because the parties have agreed that any access order will only be for the purpose of building a new Galem House wall at first floor level and above (not at any lower level where the four windows were to be) and in a way that does not interfere with the Yousaf wall).

Mr Yousaf has objected to any windows being formed in the Galem House wall (or any replacement wall overlooking the car park (“the new Galem House wall”)). He claims that they will affect his future building plans for the car park. There is no evidence that Mr Yousaf has, or can carry out, any such plans, although there is apparently a lapsed planning permission for a hotel on the car park.

Against the background of Mr Yousaf's objections to the windows, relations between the parties broke down. I do not need to determine why that is so or which, if either, party has been at fault.

In any event, on 5 June 2023, Bradford MDC served a dangerous building notice relating to Galem House on Trident under s.78 of the Building Act 1984 (“the s.78 notice”). The notice is headed “Emergency Measures to External walls” and recites that it appeared to Bradford MDC that Galem House “is in such a state as to be dangerous and that immediate action is required to remove the danger to all the external walls”. It also contains the following advisory note:

“This Notice advises the owner that the building or structure at Galem House 3–5 Vincent Street Bradford West Yorkshire is deemed to be in such a dangerous state that immediate action is required to remove the danger to the building or the Council may take immediate action to remove the danger…”

The circumstances in which s.78 notice came to be served are disputed, although it has not been suggested that Bradford MDC did not genuinely believe that Galem House's external walls were dangerous or that it had an ulterior motive for serving the notice. In any event, I am satisfied that the Galem House wall was then unsafe and unstable. John Fay, a chartered building surveyor who acts as Trident's party wall surveyor on the project, and who gave evidence for Trident, explained that, by even a year before the s.78 notice was served, he was concerned about the stability of Galem House's external walls, at least at a high level, including of a parapet wall comprised in the Galem House wall, because of the absence of lateral restraint. The photographs support Mr Fay's contention that Galem House's external walls have lost lateral restraint and that the Galem House wall was in a poor state of repair. A technical note, prepared by Clancy Consulting Ltd (structural engineers) for Trident on 2 May 2024, also recorded that:

“As part of the Galem House re-development, the section of existing wall which runs between Sunbridge Apartments and Woolston Apartments [(that is, Galem House wall)] has...