Total demolition of Kettering block of flats paused after High Court hearing – but two storeys will go

A sealed-off six-storey building in the centre of Kettering will stay put – for now – but will have the top two floors removed after a High Court Judge adjourned the case that could have ordered its total demolition.

Her Honour Judge Sarah Watson was to hear evidence in a civil court case in which North Northants Council was seeking a total demolition order of the block of flats in Job’s Yard, next to the old Prince of Wales pub.

But the builder of the apartments failed to produce any correctly-submitted evidence in his defence, with only two days of legal discussions.

Michigan Construction Ltd, the firm behind the apartments project under the sole directorship of builder Marcus Fielding, attended the Technology & Construction Court in Birmingham – a regional centre for the High Court.

Also in court were legal teams representing North Northants Council (NNC) – seeking a total demolition order in 56 days – and Mr Fielding’s financial provider M.A.X. Funding Limited, who have been opposing the building’s enforced removal.

NNC had sought the court's ‘determination’ as to whether a building has been properly and safely constructed in accordance with the Building Act 1984 and the Building Regulations 2010.

The council had also asked for a ruling whether the top two storeys of the apartments should be removed after the building was extended by two unauthorised floors, contrary to a planning inspectorate ruling, or if the building should be ‘demolished in its entirety’ on the grounds that ‘it is an unsafe structure, liable to potential collapse’.

After two days, the judge adjourned the trial and approved an order from the court compelling the developer to arrange for a specialist contractor to demolish the top two storeys and appoint experts to work with NNC’s Building Control team to identify all issues with the building that need to be resolved for the building to be considered safe.

A strict timeline has been put in place for the developer to action, and if this is not met, NNC will reapply to the court for the total demolition of the building.

The planning permission for the site allows for a four storey building following an appeal decision, not a six storey building which has been built on the site and was deemed unsafe by NNC officers.

Simon Goldberg KC, for NNC, set out the case for total demolition of the building citing a report from civil and structural engineers David Smith Associates (DSA).

He said: “The building was built in breach of the planning permission. The planning breach is not the most significant, it is the breach of building regulations. There are parts of this building that are damaged and a severe risk to the general public and those working on the site. The only justice is demolition.”

In discussions with the judge, Mr Fielding disputed the DSA report used as the basis of NNC’s call for demolition saying that the person who had written the report was ‘an office lackey’ after the senior member of the investigations team allegedly left.

He said: “Mr Smith only spent minutes on the site. The person who wrote the report was someone else. The DSA report wasn’t written by the author, it was written by the office lackey. I have no evidence as to the skills of the person who was left to write the report.”

Mr Fielding went on to defend his building’s unlawful extra two floors – a fifth with more space for flats and the sixth attic area – added without planning permission. He told the judge that in his interpretation of planning rules it was allowed for up to two extra floors to be built.

He said: “The fifth floor in an architectural point of view is correctly built. Planning permissions in town centres were given an allowance of two extra floors under permitted development. "

But when it was pointed out planning permission by the council was for only four storeys Mr Fielding hit out at the authority, and explained why he had carried on building extra floors.

He said: "Kettering is sitting in the dark ages. If you want the town centre to be redeveloped, that is the sort of building that is required.

"We were still building while we were fighting the appeal to find a way forward. We were still trying to build something that would fit into a scheme. I just thought we’d get approval.”

Building on the site had been halted after the Health and Safety Executive (HSE) had placed an enforcement order against any further work taking place.

Mr Fielding told the court that any work he had carried out since the order was remedial works. He admitted the brick work inspected was ‘scruffy’ because a ‘grumpy contractor’ had concealed the work from him. He stressed that construction had been completed with the correct type of bricks and the foundations had been dug correctly.

He said: “We dug out the foundation until we hit something hard. The foundations were done right.”

Judge Watson questioned Mr Fielding over why he didn’t have legal representation or why he hadn’t submitted any witness statements to back up his claims.

She said: “There is no evidence. You cannot expect me to accept your oral testimony – that’s not evidence before me.”

Mr Fielding disputed 23 different items listed on the official claim, outlining perceived faults in the Job’s Yard apartments.

He admitted that his company had ‘no assets of any value’ other than the building but he was happy to put his own funds into the project’. He also said if he lost the case he would not demolish it himself, preferring to pay for a contractor.

Judge Watson said that her only concern was the safety of the public.

She said: “The thing that worries me most about this is public safety. There’s a cavalier attitude to health and safety.

"This process requires plans. Why was the company building without that process?”

Mr Fielding said: “We had a build to complete and there would have been a penalty, and I wanted somewhere to live, one of the apartments is where I live.”

Shaking her head Judge Watson said: “I don’t know what to say – until that building is signed off it’s not allowed to be lived in.”

Mr Fielding said: “I just wanted somewhere to live. I wanted to build something modern and be carbon efficient and be a credit to the town centre.”

The three parties had discussions away from the court before any ruling could be made.

A ‘final offer’ was made to the developer to ‘take responsibility’ and engage with NNC to remediate building defects. A ‘mutually agreed proposal’ was then presented to the judge and agreed in court, which formed a court order with strict timeline of activities.

Due to the current ‘unsafe’ nature of the building, a cordon has been in place since June 2022 and once the building has been reduced to four storeys, NNC will be able to review the current size of cordon.

Cllr David Brackenbury, the council’s executive member for growth and regeneration, said: “We have been trying to work with the developer of this site for some time now and going to court was always a last resort.

“This is a positive step forward and we are hopeful the developer will follow the orders set out by the court. Following the removal of the top storeys, we will soon be able to look at the safety of the area and reducing the cordon in place at the earliest opportunity, which will benefit residents of Kettering and businesses around the site.”

Cllr Jason Smithers, Leader of the Council, said: “Our officers work tirelessly across North Northants tackling issues that are important to residents. As this case shows, we take enforcement cases seriously and will send cases to the court, if necessary to protect residents and prevent non-compliant building works.”

The case was adjourned until December 19, 2023 by which time the demolition of the two top floors and remedial work must be complete.