Owner of development land obtains injunction to protect against risk from trespassers

• The Court has granted a final injunction on a quia timet basis (which translates as “he fears”) against specific categories of “persons unknown” (Vastint Leeds BV v Persons unknown).
• The injunction will assist a developer landowner in protecting its site from potential damage arising from unauthorised access and use.

Background

The claimant owns a large site in Leeds which was to be developed in three phases; demolition; remediation (including undisturbed asbestos); and construction. As a result of this phasing the site was likely to be “empty” for a considerable period. The claimant was aware that during the acquisition there had been incidences with travellers on adjoining land. As a result of the potential hazards on the site and the history of trespass the claimant had taken significant steps to secure the site with fencing, regular inspections and guard patrols.

The claimant, who is part of a wider group of companies that own a number of development sites, was aware of the potentially significant costs that it, and other developers, had incurred as a result of damage caused by three types of “trespasser” - travellers, illegal ravers and fly-tippers. For more on fly-tipping, see our Law-Now here.

As a result of this knowledge, they were concerned that the site in Leeds would be targeted by similar groups. They therefore applied for, and obtained, an interim order from the court against those classes of “persons unknown” to prevent them from entering or remaining on the site without their consent. The court then listed the matter for a trial as to whether it was appropriate to grant a final injunction in similar terms.

The hearing

The court confirmed that it is possible to obtain an order against persons unknown in three instances:

1. where the name of a specific defendant is simply not known;
2. where there is a specific group/class of defendants some of whom are unknown; and
3. where the defendants are defined by reference to their future act of infringement. This case was one dealing with this third class of persons unknown.

The court further confirmed that provided it is clearly and tightly drawn, the granting of an order, such as the one sought, which only binds upon the happening of that future breach fits very well into the process created by the Civil Procedure Rules. In particular once aware of an order any person who might be affected by it (i.e. if they consider it to have been improperly made) is able to apply to set it aside or vary it prior to any breach.

However the court also made it clear that the description of such persons should not include descriptions of their perceived intention nor any legal interpretation such as “trespass”.

The process for granting the injunction

The court followed a two stage test as follows:

1. whether there was a strong possibility that without being so restrained the defendant would act in breach of the claimant’s rights; and

2. if, having acted in breach of the claimant’s rights, the resulting harm was so grave and irreparable that even the grant of an injunction at the time of the breach, damages would not be an adequate remedy.

The order

Whilst it granted the final order, the court felt that the claimant had some difficulty as it was unable to provide any specific evidence as to the identity of the persons likely to trespass.

However the court seemed particularly swayed by the potential and serious harm that could occur to any trespassers (to whom the claimant owed a limited duty of care) and also to any employees/contractors/agents of the claimant (to whom it owned a much wider duty of care) as a result of any infringement of the claimants rights.

In addition the court was clearly influenced by what it considered to be significant steps that the claimant had taken to secure the site and which had not prevented actual past infringement of their rights and the resulting, large irrecoverable loss it had suffered.

Conclusion

Whilst each case will turn on its own facts this is not the first time such an order has been granted recently. In Ineos Upstream Ltd v Persons Unknown, a similar order was made in relation to anti-fracking protestors. In Canary Wharf v Brewer, an interim injunction preventing trespass was granted against both identified and unidentified individuals, who had climbed buildings and cranes on construction sites at the Canary Wharf Estate (see our Law-Now here). Therefore, owners of potentially vulnerable land should give consideration to protecting themselves from the risk of significant damage in this way.

In order to maximise a successful outcome any applicant should first have taken all practical and commercial steps it can to protect the property; gathered evidence (from social and traditional media or its own knowledge); and identified any specific risks either with the class of potential trespasser or in relation to the site itself.