Antony Phillips is head of real estate at law firm Fieldfisher
Preemptive injunctions are becoming an increasingly common way of protecting construction sites from acts of trespass by individuals or groups. While trespassing takes many forms, common trespassing problems affecting derelict or partially finished brownfield and urban sites include unauthorised entry by so-called urban explorers (or ‘urbexers’), illegal ravers, squatters or local people using the area for recreational activities.
“Injunctions of this nature are generally highly effective in protecting sites and, as such, are a cost-effective and practical option”
Greenfield sites earmarked for development may be targeted by more organised groups protesting against the proposed development and looking to halt the project. Recent examples include anti-fracking demonstrations and protests against large infrastructure projects such as HS2.
While in many cases trespassers will only remain on site for a short period of time and leave of their own free will, they may create both damage and risk to developers and contractors.
Landowners and contractors have wide duties of care to protect the safety of trespassers and account for risks they might encounter, under the Occupiers’ Liability Act of 1984. This is in addition to the commercial risk of projects being delayed or impeded by such action.
One option for landowners and contractors is to fence, alarm and guard the site. However, that is not possible in many situations and, if it is possible, is often prohibitively expensive. Even then, such protection is rarely fully secure, with intruders evading even the most comprehensive and elaborate protection systems.
Inevitably, construction sites of all kinds will be unoccupied for periods of time, even if it is just overnight, giving trespassers the opportunity to enter the premises.
What is pre-emptive injunctive relief?
An injunction of this nature is a court order that will prohibit a party (individual or group) from taking a particular action – in this case, coming onto a defined site. These injunctions may apply to named persons or “persons unknown” – ie, anybody who might consider trespassing on a site.
The real value of such an injunction is its deterrent effect given that a breach of an injunction is a criminal offence that may result in committal to prison. Consequently, injunctions of this nature are generally highly effective in protecting sites and, as such, are a cost-effective and practical option. Given that an effectively protected site is a safer one, injunctions provide developers and contractors with considerable peace of mind that accidents are less likely to occur, and their projects are more likely to proceed smoothly and without interruption.
Who may benefit from pre-emptive injunctive relief?
Pre-emptive injunctive relief may be available to any organisation that can demonstrate a “real and imminent risk” of unlawful activity occurring on its sites. In most cases, it is the site owners or developers who will seek pre-emptive injunctive relief. However, contractors may also apply for injunctions.
How do contractors apply for pre-emptive injunctions?
If a contractor wishes to take out a pre-emptive injunction, it must first gain the consent of the landowner (who will also be added as a party to the action). Provided the landowner agrees, usually the first step is to obtain an interim injunction from the court.
What evidence is needed to apply for this type of injunction?
Applicants will need to compile evidence that their site is at risk of being trespassed upon. That is either because there have been incursions in the past or because there have been threats of future occupation. In the case of protests and raves, such evidence is often available online.
How quickly may an injunction be obtained and enforced?
In urgent cases, interim injunctions may be obtained without giving prior notice to the party against whom the injunction is being taken. Where the criteria are met, interim injunctions will usually be granted pending a further hearing. Once the pre-emptive injunction is granted and served, those named in the proceedings will be prohibited from conducting specified activities against the organisation that has taken the injunction. At that stage, anyone breaching the injunction may be forcibly removed by the police and potentially face prosecution.