Pre-emptive Strike For Development Site

​The expense and inconvenience of removing unlawful occupiers from development sites is a burden for developers and the recent case of Vastint is of relevance to those concerns.
  • Submitted 31 October 2018
  • Applicable Law UK (England & Wales)
  • Topic Real Estate

Vastint Leeds BV v Persons Unknown Entering or Remaining Without the Consent of the Claimant on Land and Buildings Comprising Part of a Development Site Known as the Former Tetley Brewery Site, Leeds [2018] EWHC 2456 (Ch) concerned an application for a final injunction to prevent persons from unlawfully entering and remaining on the claimant’s development site.

The claimant’s concerns related to trespass, both by vehicles and individuals, and to fly-tipping at the site. These concerns arose from the fact that the site had previously been accessed unlawfully, incidents of a similar character having occurred at other development sites owned by the claimant’s sister company and, more generally, by other landowners/developers in the vicinity.

An interim judgment had previously been obtained by the claimant and the application for final injunction was submitted on the basis that there was a substantial risk that its property would be accessed unlawfully, as outlined above. The claimant had previously taken steps to secure its site and expressed its apprehension as to the dangers posed to the health and safety of persons accessing the site, particularly with regard to the use of the site for development purposes and the likelihood of injury resulting from hazards present.

The judgment in this case cited the established two-limb test applied to determine whether or not an injunction will be granted, and highlighted that the test would be applied stringently.

  • firstly, it must be established that there is a serious probability of infiltration (i.e. acting in breach of the claimant’s rights), and
  • secondly, that such breach was of a nature likely to cause harm that could not adequately be remediated by an award of damages or intervention after the event.

On the facts, Marcus J found that the two-limb test was met. In the first instance, the previous unlawful entry onto the site by persons with caravans indicated a likelihood of repeated infringement and there was a strong possibility that the site could be used for illegal raves. In respect of the second limb, the court found that there was a real and serious possibility that trespass could result in serious risk to the health and wellbeing of individuals by reason of its use as a development site and the inherent dangers that accompany such use.

A quia timet (since he fears) injunction was granted in respect of the threat of “persons unknown” occupying the site for purposes that were not purely transient in nature or the use of the site by such persons for arranging and/or participating in raves (the risk of fly-tipping was not referred to). This type of injunctive relief is both an anticipatory and preventative measure and seeks to protect against the occurrence or repetition of an actionable wrong despite such wrong not yet having been committed. The application of this to “persons unknown” provides protection in instances where the potential defendant’s identity is as yet unknown and which would be established by a future act of infringement.

The judgment makes clear that the wording of such orders is to be precise and restricted to specific identifiable threats only, so as to avoid a blanket application, i.e. the injunction should not apply broadly to anybody entering onto the site without consent. It also reiterates the position (established in Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch)) that it is not necessary to name defendants in proceedings where it is not possible to identify them but a person later made party to proceedings by their act of infringement may, where appropriate, be referred to.

Comment

This case demonstrates that, in certain circumstances, it is possible for landowners and developers to take measures where trespass is anticipated (although there is likely to be some requirement of imminence). This, in turn, may reduce the costs and potential disruption to development programmes associated with removal of unlawful occupiers.

In light of this judgment landowners and developers may consider proactively seeking such orders particularly in circumstances where development sites are in at-risk areas, difficult to secure or may be left undeveloped for periods of time. However, the narrow application of quia timet injunctive relief must be acknowledged and developers should continue to take practical steps to secure their sites to deter the possibility of trespass and to ensure that infringement does not happen.

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