Injunction against “urban explorers”
Mark Banham considers the use of injunctions against modern trespassers and persons unknown.
In the recent case of Canary Wharf Investment Limited & others v Brewer & others [2018] EWHC 1760 (QB) a high-profile land owner was granted an interim injunction preventing trespassers from accessing a construction site for the purpose of carrying out “urban exploring”. “Urban exploring” involves trespassers climbing structures and construction plant and machinery (cranes) and uploading footage of the activity on various social media platforms.
As the extent of the trespass was transient a claim for possession may have been difficult to obtain against the “urban explorers” on the basis that they were not permanently occupying the site or at least part of the site. Moreover, the landowner had the added issue of not being able to identify all of the individuals currently undertaking the activity or those that would be trespassing to undertake the activity in the future.
Whilst the activities of the trespassers did not appear to prevent the landowner from accessing the site or continuing with the development the landowner would have been concerned for the safety of the trespassers, the general public, its security staff, damage to the buildings, plant and machinery on site and whether (having knowledge of the illegal activity) its insurance policy would have provided cover in the case of an unfortunate incident.
The landowner therefore sought an interim injunction against the both urban explorers that could be identified (named Defendants) as well as those that could not be named (persons unknown). The land owner accepted undertakings from the named Defendants not to enter the site and the Court granted an interim injunction against the persons unknown on the basis that there was evidence that, notwithstanding the undertakings, “urban exploring” would continue on the site regardless.
This case is yet another example (see also Europa Oil & Gas (Holdings) Ltd v Persons Unknown [2017] EWHC 403 (Ch) and Ineos Upstream Limited and others v Persons Unknown [2017] ALL ER (D) 190 (Nov)) of the pragmatic and proactive approach taken by the Court in recent times to protect those with a possessory right over land being occupied by modern trespassers, in particular “professional squatters”, protesters, illegal rave organisers and special interest groups. Injunctions against unidentified individuals are criticised by such groups as being contrary to Human Rights legislation and “draconian” in terms of their effect.
Whilst the Courts remain willing to grant such injunctions to land owners it should not be considered as fait accompli by those with a right to possession. This case demonstrates that the Court will carefully assess whether the terms of the injunction are proportionate to prevent the activity complained of being undertaken on the site and do not prejudice the rights of any others that are not carrying out those activities. Moreover, the Court will require compelling evidence that sufficient attempts had been made to serve the Court documents on the defendants (including persons unknown) and that the activities complained of were likely to continue.
FSP’s property litigation team are regularly instructed to seek possession orders and injunctions against trespassers and “professional squatters”. If you would like to discuss the recovery of land or any other property litigation issues please contact Mark Banham: [email protected].
