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The unknown unknowns: actions to protect land from unknown occupation

29th May 2019

The unknown unknowns: actions to protect land from unknown occupation

Here’s a riddle. What started with the publication of the fifth of the Harry Potter books (Harry Potter and the Order of the Phoenix) and has pretty much ended with fracking in Lancashire? The answer is the development of the law in relation to the commencement of proceedings against Persons Unknown?

The Vice Chancellor in Bloomsbury Publishing Group Ltd and others v News Group Newspapers Ltd and others [2003] EWHC 1205 explained how the Civil Procedure Rules (CPR) allow claims against unidentified defendants to be pursued. He said that:

“The failure to give the name of the defendant cannot now invalidate the proceedings both because they are started by the issue of the claim form at the request of the claimant and because, unless the courts think otherwise, Rule 3.10 so provides.”

(Paragraph 19, judgment.)

He went on to say that, provided the description was sufficiently certain so as to identify both those who are included and those who are not, no further element of identification is necessary.

What this has meant is that, in recent times, there have been a large number of actions brought against Persons Unknown and given various descriptions. By way of example, the so-called “green space injunctions” protecting council-owned public land in London and surrounding Boroughs are aimed at (a) Persons Unknown Occupying Land, and (b) Persons Unknown Depositing Waste and Fly-tipping. This separation is to reflect the important distinction between those that wish to occupy and those that are intent on criminal fly-tipping activity (see London Borough of Sutton v Persons Unknown [2018] 11 WLUK 819).

Of course, it is somewhat troubling that a person can be joined to proceedings without even knowing that they are in breach of an injunction. This anomaly was helpfully explained in Vastint v Persons Unknown [2018] EWHC 2456 by Mr Justice Marcus-Smith. The land that the claimants sought to protect was a development site in Leeds. The site had frequently been occupied by persons seeking to host musical raves and, despite considerable efforts on the part of the land owner to secure the premises, nothing kept the ravers out. Mr Justice Marcus-Smith identified three types of Persons Unknown: (a) the specific defendant whose name was unknown, (b) a group of defendants, some of whom are known and some who are unknown, and (c) the defendant who is defined by reference to a future act of infringement. Mr Justice Marcus-Smith observed the counter-intuitive notion of someone through the act of infringing becoming a party to proceedings, bound by an order and therefore in breach of that order only when he/she infringes. However, he then made the point that such an order does actually work because it is the act ofinfringing that makes the infringer the party.

Mr Justice Marcus-Smith’s helpful discussion on the point was, interestingly, not referred to when the matter came before the Court of Appeal in the Ineos appeal from the order of Mr. Justice Morgan. In the leading judgment in Boyd, Corre and others v Ineos Upstream Limited and others [2019] EWCA Civ 515, Lord Justice Longmore referred to a number of cases, including the Supreme Court ruling in Cameron v Liverpool Victoria Insurance [2019] UKSC 6, in order to trace the history of cases against Persons Unknown. The judgment set out six requirements to consider when a court is requested to make an order injuncting Persons Unknown. Those requirements are as follows:

“1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;

2) it is impossible to name the persons who are likely to commit the tort unless restrained;

3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;

4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;

5) the terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and

6) the injunction should have clear geographical and temporal limits.”

(Paragraph 34, judgment.)

In recent times, I have been instructed on behalf of numerous local authorities (over a dozen and counting) to obtain green space injunctions and, with the guidance handed down by the Court of Appeal, I see no reason why applications of this nature should cease. I say that because the six requirements identified can be met with the right evidence.

The first requirement, to show a sufficiently real and imminent risk, is established with evidence of existing occupation and fly-tipping and the fact that it is not likely to go away. Many cases have succeeded not just because of occupation and fly-tipping on council land but also because private land in the borough has been the subject of infiltration. That private landowners are suffering in this way is “good” evidence that, but for an injunction to prevent it re-occurring on council land, the green spaces will also be hit.

The second requirement is met, firstly, because the identity of those intent on either occupying or fly-tipping or both cannot be known. It is to be noted that some councils with preventative injunctions have sought to identify named individuals, but it is impossible to identify every potential defendant, particularly as names are often not offered and, if they are offered, are fictitious. One High Court enforcement officer has recently told me that he removed Mr M Mouse from council land more times than the said mouse has appeared in Hollywood movies. Of course, even if it were possible to identify named individuals, others intent on occupying or fly-tipping whose names are not known would also need to be caught by the protective order. So it is, that the unknown persons are an acceptable defendant under the proposed infringers identified by Mr Justice Marcus-Smith.

The third requirement, to give notice of the injunction, can be met by copies of the orders being posted on fences,gates and noticeboards to all the entrances to the land being protected and on the owners’ websites. Orders requiring hard copies at public libraries and other public buildings can also assist with meeting the third requirement when relating to council land.

The fourth requirement is met both in common law and statute. The common law tort of trespass and an act of nuisance is very easily engaged and established. Together with statute (the Town and Country Planning and Highways Acts), it is very straightforward for the applicant to establish the cause of action hook upon which the injunction is to be pursued.

The fifth requirement is all in the drafting. The green space injunctions forbidding occupation of any part of the land for residential purposes (temporary or otherwise) including with caravans, mobile homes, vehicles, and residential paraphernalia, makes it very clear that anyone else using the land for other purposes, not associated with occupation, will never be in breach. It follows that a dog-walker in a park can never think they are bound by the order, whereas a person in a mobile home seeking to set up a camp can be in no doubt that, as soon as they arrive on the protected land, they are subject to the order and in breach.

Finally, the sixth requirement. Geographically this is straightforward as the green spaces are always identified and listed on a schedule and any private land has the benefit of office copy title plans and other title documents. As for temporal orders, after an initial period for the interim order, comes the final order, which will be for an extended period although not indefinite.

The development of the law in relation to Persons Unknown is now well advanced. Experience shows that each case turns on its particular facts but, where the land cannot be protected, whether by reason of it being public land (and by definition open to the public), or the land is private land that simply cannot be secured against the determined trespasser, an injunction against unlawful occupation can, and will, be ordered. After all, in the words of Mrs Justice Lang in London Borough of Waltham Forest v Persons Unknown [2018] EWHC 240:

“These green spaces are for local residents to use and enjoy for their designated purposes. It is neither fair nor lawful for them to be taken over by travellers and used for unauthorised encampments.”

(Paragraph 8, judgment)

That relates, of course, to trespass by travellers, rather than fly-tipping. Fly-tipping is a still greater interference with the rights of the citizens and the council.

It is clear that, when the facts and the law are as one, the only right order is to protect land from unlawful infiltration.

This article was first published in Thomson Reuter’s Practical Law Property Litigation Column.

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