Emma Pinkerton outlines the options available to owners of land potentially vulnerable to fly-tippers and other trespassers.
Owners of property face a number of challenges. Those owning large, open or development sites are more likely to face one in particular: trespass. This comes in many forms from urban exploration (“urbexers”), illegal raves and mass protests to fly-tipping (the illegal dumping of, sometimes toxic, waste). In recent years there has been a rise in all of them, with some of the groups involved being very well organised and connected.
The delay and damage caused by trespass, in particular fly-tipping, can be significant – with little prospect of recovery from the perpetrators. During the summer months open green sites are more often the target of “professional” groups of fly-tippers but, with the wet winter weather setting in, their attention turns to areas of hardstanding, putting commercial organisations at greater risk of incursion.
What can property owners do?
With the more obvious incursions, such as from travellers and fly-tippers, the usual scenario is that steps are taken after the intrusion has happened. Those steps are likely to include applying to court for an injunction to stop that incursion and recover possession. Although an injunction can be obtained relatively swiftly, it can still take more than a week.
Anyone who has been affected by fly-tipping will be aware of just how much rubbish can be dumped in a short time. Clearly the longer trespassers can access the site, the more “profit” they can make from dumping and the greater the clean-up cost, so time is of the essence.
The court has sought to address this by allowing claims against trespassers to be started in the High Court if “there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate attention” and speeding up the process from weeks to days. However, there is another option.
Injunctions
The court has the discretion to grant injunctions either to prevent particular actions or specifically require something to be done.
That can either be temporary in nature (an interim injunction), until the matter can be decided at a full trial, or final after the court has an opportunity to explore the issues in dispute fully. To obtain an interim injunction, the applicant will need to persuade the court that the wrongdoing is likely to cause irreparable damage if allowed to continue until the trial can be held.
Of interest in the context of trespass is the right for the court to grant an interim injunction requiring the respondent to refrain from something which it has threatened to do and which would violate the applicant’s legal rights. This is known as a quia timet injunction, which translates as “because he fears”.
The applicant for a quia timet injunction does not need to show that the respondent has already committed the act, but that it is able to start proceedings on the basis of a threatened breach.
The burden of proving that claim is on the applicant and will be decided on a balance of probabilities basis – meaning it is more likely than not that the action will be taken.
Two-stage test
Before imposing a quia timet injunction, the court will follow a two-stage test.
First, whether there is a strong possibility that, without being restrained, the respondents would act in breach of the applicant’s rights. Second, if, having acted in breach, the resulting harm would be grave and irreparable that even if the court were to grant an injunction at the time of the breach, damages would not be an adequate remedy.
An injunction of this nature can be obtained against persons unknown and can be granted on an interim or final basis.
What have the courts said?
The court has examined these injunctions in three recent reported cases and the following key points can be gleaned.
Ineos Upstream Ltd v Persons unknown [2017] EWHC 2945 (Ch) involved anti-fracking protesters and dealt with a number of issues, including potential trespass and protests on and around a fracking site and related sites belonging to the company and also third party suppliers.
The court found that, on the basis of the considerable and detailed evidence provided, there was a real and imminent risk from persons known and unknown of trespass to land.
As a result, it granted an injunction to prohibit trespass on to specifically defined areas of private land; prohibit interference with private rights; prohibit interference with public rights of way over the highway; and to prevent certain other restrictive criminal and tortious acts (ie criminal damage).
Freedom of expression
The court took into account rights of freedom of expression under the Human Rights Act 1998, which the parties accepted were engaged. However it found that it need consider only whether the order made might affect the exercise of those rights. Given the restrictive descriptions of the specific areas affected by the injunction, it was felt that rights under the legislation were not so affected.
This case shows that the court is willing to be flexible in assisting businesses to protect their legal interests against potentially significant harm and delay caused by protesting.
The second case is Canary Wharf Investment Limited v Brewer & others [2018] EWHC 1760 (QB). This dealt with identified and unidentified defendants who had, or might, climb buildings and cranes on construction sites at the Canary Wharf estate.
The High Court held that:
1. A landowner is entitled to an injunction to restrain trespass, whether or not the trespass causes damage;
2. Absent evidence of some prospect that the defendant might have a right to do what the claimant seeks to restrain, as long as the claimant establishes a significant risk of trespass, an interim injunction will usually, if not invariably, be justified;
3. Difficulties with enforcement do not justify the refusal of an injunction; and
4. It is possible for the injunction to be granted against “persons unknown”, as long as the court is satisfied there is a significant risk of others, who are at present unidentified, carrying out the offending conduct.
Following on from that, in the most recent case, Vastint Leeds BV v Persons unknown [2018] EWHC 2456 (Ch), 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 dealt with the third class of persons unknown and, on the specific facts, the court was swayed by the potential and serious harm that could occur to any trespassers as a result of potentially dangerous substances on the site. In addition, the court was clearly influenced by what it considered to be significant steps that the claimant had taken to secure the site, which had not prevented actual past infringement of their rights, and the resulting large, irrecoverable loss it had suffered.
Be prepared
Although each case will turn on its own facts, where appropriate evidence of the likelihood of infringement, of whatever nature, is available, the court has shown itself willing to grant these types of injunctions. What is more, they also appear to work, acting as a deterrent, particularly to fly-tippers, since the risk will not be worth the reward.
Owners of potentially vulnerable land should give consideration to protecting themselves from the risk of significant damage in this way.
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.
Key terms
Interim injunction
An order sought by a party to preserve the position before trial
Mandatory injunction
An order requiring a party to carry out a specific act
On notice
Where the respondent is told about the application beforehand. Gives them the chance to make submissions in court
Prohibitory injunction
An order requiring that a party refrains from performing a specific act
Without notice
Where an order is sought in the absence of the respondent. This option may be used if the application is urgent, the identity of the respondent is unknown or there is a risk in notifying the respondent in advance
Quia timet injunction
An order to prevent threatened, or imminent, actions that have not yet occurred
Main image © Alison Mcdougall/ANL/Rex/Shutterstock
Emma Pinkerton is a real estate disputes partner at CMS LLP
