The recent case of Vastint Leeds BV v Persons Unknown is a welcome decision for developers, who are concerned about the possibility of trespassers on large development sites.
Vastint Leeds BV's (Claimant) development site on the site of the old Tetley Brewery and adjacent land in Leeds has suffered in the past from trespassers. Due to the phased nature of the Claimant's development plans, large parts of the site were and are likely to be vacant for a considerable period. Several of the buildings on the site are in an unsafe state and contain hazardous material, including asbestos. Despite having taken sensible precautions to secure the site with substantial fencing and security patrols, trespassers still managed to enter the site. Apart from travelers, nearby sites have also suffered from illegal raves and instances of fly-tipping, (the illegal dumping of waste products and materials).
Knowing of these potential trespassers, yet without any current ones, the Claimant succeeded in obtaining an interim injunction from the court against "persons unknown" either attempting to establish occupation on the site or organizing raves, thus preventing trespassers from entering or remaining on the site without the Claimant's consent.
When deciding whether the injunction should be made final, 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 or class of Defendants, some of whom are unknown; and
3. Where the Defendants are defined by reference to their future act of infringement
The court looked at whether there was a strong possibility that if not restrained the persons unknown would act in breach of the Claimant's rights. The court also considered if having acted in breach of those rights, the resulting harm would be so grave and irreparable that even the grant of an injunction at the time of the breach or an award of damages would not be an adequate remedy.
While troubled by the lack of evidence as to the specific identity of persons likely to trespass, the Court was swayed by the potential for serious harm that could occur to trespassers entering the site to whom the Claimant owed the usual limited duty of care. There was also concern about potential harm to employees/contractors/agents of the Claimant (to whom it owed a much more significant duty of care) as a result of any infringement of the Claimant's rights. The court also took into account the significant steps that the Claimant had taken to secure the site which had not prevented trespass in the past and which had resulted in significant loss to the Claimant.
This case will be helpful for problem sites, as having an injunction in place before any actual trespass occurs will accelerate the eviction process in terms of both civil and criminal enforcement action. What comes out of the case is the importance for any applicant to take all practical and commercial steps possible to protect the property beforehand. Property owners should also identify specific risks both from and to specific classes of people in the area. The decision indicates that if evidence supports action the courts are willing to act.
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