Antony Phillips is Head of Real Estate at law firm Fieldfisher
Preventive injunctions are becoming an increasingly common way to protect construction works from trespassing by individuals or groups. Although encroachment takes many forms, common encroachment problems affecting abandoned or partially completed land and urban sites include the unauthorized entry of so-called urban explorers (or “urbexers”), illegal ravers, squatters or local people using the area for recreational activities.
“Precautionary measures of this nature are generally very effective at protecting sites and are therefore a practical and cost-effective option”
Greenfield sites earmarked for development may be targeted by more organized groups protesting the proposed development and seeking to stop the project. Recent examples include demonstrations against fracking and protests against major infrastructure projects such as HS2.
While in many cases intruders will only stay on site for a short period of time and leave of their own volition, they can create both damage and risk to developers and contractors.
Landowners and contractors have broad duties of care to protect the safety of trespassers and take account of any risks they may encounter, under the Occupiers’ Liability Act 1984. This is in addition to the commercial risk of delaying or preventing the projects for this action.
One option for owners and contractors is to lock, alarm and monitor the site. However, this is not possible in many situations and, if possible, is often prohibitive. Even then, this protection is rarely completely secure, and intruders bypass even the most comprehensive and elaborate protection systems.
Inevitably, works of all types will be unoccupied for periods of time, even overnight, giving intruders the opportunity to enter the premises.
What is preventive injunctive relief?
An injunction of this nature is a court order that will prohibit a party (individual or group) from taking a specific action, in this case, entering a defined place. These court orders can be applied to named persons or “unknown persons”, meaning anyone who might consider entering a place.
The real value of this injunction is its deterrent effect, as failure to comply with an injunction is a crime that can result in a prison sentence. Consequently, injunctions of this nature are generally very effective in protecting sites and as such are a cost-effective and practical option. Because an effectively secured site is safer, safeguards provide developers and contractors with considerable peace of mind that accidents are less likely to occur and that their projects will run smoothly and without disruption.
Who can benefit from preventive injunctive relief?
Any organization that can demonstrate a “real and imminent risk” of illegal activity occurring on its sites may be available for preventive injunctions. In most cases, it is the site owner or developer who will seek injunctive relief. However, contractors may also seek injunctive relief.
How do contractors apply for preventive injunctions?
If a contractor wants to take an injunction, they must first obtain the consent of the land owner (which will also be added as part of the action). Provided the landlord agrees, the first step is usually to get a temporary injunction from the court.
What evidence is needed to request this type of file?
Applicants will need to gather evidence that their site is at risk of entry. This is because there have been raids 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 can an injunction be obtained and enforced?
In cases of urgency, injunctive relief may be obtained without prior notice to the party against whom the demand is enforced. When the criteria are met, an injunction will usually be granted pending a new hearing. Once the precautionary file has been granted and notified, those named in the procedure will be prohibited from carrying out certain activities against the organization that has taken the demand. At this stage, anyone who violates the order can be forcibly removed by the police and potentially prosecuted.
