Recovering Land and Other Land Actions – Prevent or React?

For many landowners and businesses, 2022 will be another challenging year. Dealing with constraints due to the COVID-19 pandemic situation, government bodies and owners of residential and commercial premises equally have faced some unparalleled changes and issues. This has resulted in devised strategies to improve, and in some cases prevent, landowners’ need to recover land from trespassers and protect it from other potential unlawful action on the hands of ‘persons unknown’

The approach to trespass and/or incursions adopted by landowners and government bodies has, until now, has been of reactive nature. The procedure for obtaining an order for possession of land is set out in Civil Procedure Rules, Part 55 and Practice Direction 55A and this is the most commonly used route of recovering land, whether from a tenant acting in breach of their obligations, or a trespasser. It has however, been recognised not only by the landowners, but also by the courts that this process is usually long, expensive and often leaves the claimant dealing with damaged premisses, clearing out leftover waste at their own cost and in their own time. 

The repossession process was hindered and in effect, put on pause, from 26 March 2020, as the Coronavirus Act 2020 has protected most tenants and secure licensees in the private and social rented sectors. Furthermore, owners of commercial premises confronted further struggles as businesses faced repeated closures during 2020 and 2021 and whilst majority of the UK workforce moved away from office work. This means that the number of empty commercial units on our streets has increased significantly. 

Usually, a person seeking injunctive relief has already suffered a wrongdoing. However, it might also be possible to seek an injunction on the basis that an individual fears that a wrong will be committed if an order preventing it is not made by the court. A preventative injunction may therefore, be granted where an individual has threatened a wrongful act or there is a real risk that, unless an injunction is granted, an actionable wrong will be committed. In terms of land or properties, this could be for example, when a large piece of land or public space becomes empty, exposing it to trespass. It is also particularly useful when a specific event scheduled to occur is likely to expose the land or public space to trespass, damage and/or fly tipping, such as protests or other large gatherings. 

Injunctions are a discretionary remedy, which means the Court may grant an injunction "in all cases in which it appears to the Court to be just and convenient to do so". Typically, an injunction will be an order requiring a party to do a specified act; or to refrain from doing a specified act. An injunction may be granted on an interim or final basis and different considerations apply, depending on the order sought. In practice, injunctions tend to be used in cases where time is of the essence and urgency plays part. They can be very effective, however, are likely to attract considerable legal fees and are not awarded lightly. It is therefore appropriate to take into account all risks, remedies sought, proportionality and consider whether other legal routes available might be more appropriate and provide the claimant with an adequate solution. 

Preventative injunctions seem to be a relatively new approach used by the local authorities, and recently more commonly also by commercial landowners, enabling them to protect the land from a prospective action or damage. This mechanism has already saved landowners and government bodies large sums on money typically spent on resources and legal fees necessary to deal with removing trespassers, repairing and clearing land and public spaces. It can also be considered to improve relations between councils, their tax payers, the police and the whole community.

Some noteworthy examples of how preventative injunctions have been used and interpreted by the courts include applications relating to the occupation of land by the traveller community, applications preventing protesters from entering and interfering with land and an application preventing car cruising in the areas of Wolverhampton, Dudley, Sandwell and Walsall Councils. 

It is a very proactive action, issued in the High Court, against ‘persons unknown’, which means that if the said land is used in a manner deemed unlawful by the injunction, any person committing the said act will automatically be deemed to have acted in breach of the injunction. Any such person could therefore be subject to fines or imprisonment. The courts have however, made it clear that they are unlikely to grant a preventative injunction where the defendants, persons unknown, fall within a class which is too wide and uncertain.  

If you would like to know more about the process of obtaining a possession order or a preventative injunction and how it could help you or your business, register for a free webinar on this topic on 26th January 2022 by following the below link: