Lydia Robinson
Posted on 5 Feb 2019

Michelmores Real Estate Soundbite: Trespassers forewarned by precautionary injunction

The High Court has granted an injunction against 'Persons Unknown' in anticipation of trespass on vacant land owned by the Claimant, Vastint Leeds B.V ("Vastint"). Crucially the trespass in question hadn't yet occurred and potentially never will, hence the 'Persons Unknown' defendant.

The Duty of Care to Trespassers

The Occupier's Liability Act 1984 stipulates that a property owners' duty of care extends to anyone present on their land, irrespective of permission. This means that land owners can face prosecution from a person injuring themselves 'due to the state of the premises or to things done or omitted to be done on them',  even if that person was trespassing (entering onto the land without permission) at the time of the incident.

This duty cannot be excluded and being in breach may result in an owner having to pay significant sums in compensation (although the Courts may reduce the damages payable if the victim is found to have been contributorily negligent to their own misfortune by trespassing), as well as suffering the consequences of potential negative publicity.

Warnings may act as a deterrent for trespassers but they will not automatically release a land owner from liability for personal injury. For example, in Tomlinson v Congleton Borough Council a trespasser sued the Council after breaking his neck when he dived into a shallow lake on the Council's land, having ignored a warning sign. This case reached the House of Lords who found in favour of the Council, as the Claimant's injuries resulted not from the 'state of the premises' but rather the inherently dangerous activity the claimant had indulged in.

Owners of vacant land and in particular land scheduled for development (which will often be an unsafe landscape) therefore face the ubiquitous problem of how to prevent trespass when warning signs and other deterrents will not release them from liability, and can too easily go unheeded.

The Case

In Vastint Leeds BV v Persons Unknown, Vastint acted proactively and sought an injunction against 'Persons Unknown' from trespassing on their land scheduled for development, to minimise their risk of liability in the event of a trespasser sustaining injury.

Quia Timet Injunctions

The order, known as a 'quia timet injunction' (meaning 'because he fears') operates in anticipation of an actionable wrong being committed, rather than to remediate an existing breach. The defendants in a quia timet injunction (despite being individually unknown) must be 'properly defined, appropriate and permissible', so as to avoid people entering the property lawfully being inadvertently in breach of the order. Vastint identified three specific groups of 'Persons Unknown' as potential trespassers; based either on previous trespass or evidence of these activities occurring in close proximity to their development site:

  1. Travellers with caravans seeking more than temporary occupation
  2. Persons organising or attending illegal raves
  3. Persons fly-tipping

In granting this injunction, the Court considered:

Firstly, whether there was a real risk that without this injunction 'Persons Unknown' would act in breach of the Vastint's rights (ie: proof of imminent danger). Land owned by Vastint had fallen foul of trespassers four times in the past seven years, despite considerable preventative measures including regular security patrols, fencing and inspections. Neighbouring properties had also been targeted by fly-tippers and people organising and attending raves.

Secondly, if the danger or injury did occur; would the harm be so substantial and irreparable that a remedy of damages would be inadequate. Due to the nature of the vacant development site it was considered that substantial harm could befall 'Persons Unknown' in the event of trespassing and to whom Vastint would then owe a duty of care. The court also considered the more onerous duty of care Vastint owed to its invited visitors and employees in relation to their personal protection against potentially violent or reckless trespassers.

The Outcome

The Court found the test was satisfied and granted the injunction. However, the order was caveated with a requirement that the description of 'Persons Unknown' be varied to explicitly exclude certain groups (such as the emergency services) to prevent them falling foul of the law.

This judgment is a step forward for developers and other owners of vacant land in buttressing their sites against trespassers by providing them with legal recourse, and minimising their risk of liability to 'Persons Unknown'.