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Trespassers
This page deals with three points:Orders against persons unknown.
Orders in respect of neighbouring land.
No power to suspend order for possession without consent of owner.
Orders against persons unknown
Article: "Magical intervention" by Daniel Levy, Lovells - Discussion of Hampshire Waste Services Ltd v Persons Unknown [2003] EWHC 1738 (Ch); [2003] 42 EG 126 in which land owners obtained an injunction, in advance of a planned protest, against persons unknown preventing them from carrying out a trespass in the course of that protest. The court order was made against: "Persons entering or remaining without the consent of the claimants [on the incinerator sites] in connection with the 'Global Day of Action Against Incinerations' (or similarly described event) or around 14 July 2003". The court ordered that the order could be fixed to posts around the site and that this would constitute sufficient service on the protesters. The article gives some very practical advice on the evidential and procedural steps to be taken when seeking such an order (Estates Gazette, 22 November 2003, p149).
Order in respect of neighbouring land
In certain circumstances it may be possible to obtain an order for possession not only in respect of the land occupied by the trespassers but also in respect of other land owned by the claimant to which the trespassers might go.Although there may be difficulties in knowing precisely where to draw the line in particular cases, a line has to be drawn somewhere. That should be done by the process of a common sense assessment of the whole situation, taking account of the past conduct of the trespassers and their likely future conduct with respect to the claimant's land. If there is convincing evidence of a real danger that actual trespasses will be committed on other land of the claimant, a wider form of possession order may be justified. It should be made only in cases in which (a) trespasses have already been committed on an area of the claimant's land and (b) it is necessary to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of his land by persons who neither have, nor, indeed, even assert, any right to enter into possession of the claimant's land. As explained by Wilson J a quia timet injunction against individual persons in such a situation would not be an effective remedy for dealing with a situation. (Mummery LJ, para 36)
The further the separation of parcels of land, the less obvious the need for inclusion of the far parcel in the order. Any similarity in the characteristics of the land, its use and its attractiveness to a class of trespassers will be material. If, for example, one house in the terrace is unlawfully occupied, it may be appropriate for the order to include the other empty houses in the same terrace. The size of the estate itself might be a factor in extending or limiting the ambit of the order. All the features of the claimant's land are material to the need for the order to define how far the writ will run.. (Ward LJ, para 44). This was a claim by the Secretary of State managed by the Forestry Commission. The defendants had trespassed in one wood and a claim for possession was made. It was also granted in respect of 30 other areas of woodland that the claimant thought the defendants might occupy. The CA set aside the judgement in that respect as going too far. There was not enough evidence to show that there was a real danger that the defendants would enter the other areas.
Drury v Secretary of State for the Environment Food and Rural Affairs [2004] EWCA Civ 200; [2004] 37 EG 142
Article: Trespasser beware! by Richard Hickmet, barrister Discussion of the possibilities for landlords in the light of the case. (Estates Gazette, 24 April 2004, p123)
No power to suspend order for possession
Boyland and Son Ltd v Rand
[2006] EWCA Civ 1860
In the absence of agreement from the land owner, the court has no power to give trespassers time to vacate when making an order for possession. No such power has been introduced by s89 of Housing Act 1980; nor pursuant to the European Convention on Human Rights.
Section 89(1) of the 1980 Act is in the following terms:“Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.” Neuberger LJ at para 9:“As a matter of ordinary language, it seems to me that Section 89 cannot assist the applicant. As the title to the section, which is reflected in the longer title to the 1980 Act, shows, the provision is concerned with cutting down the period from which the court can postpone the operation of an order for possession. It is also clear from the negative terms in which the section is expressed. It is to my mind concerned with cases where the court has power to postpone and, in those cases, it is directed to curtailing the exercise of that power. There is no reason to think that, by a side wind, the legislature intended to grant squatters rights which did not previously exist.”. As to the human rights point that was dealt with in Leeds City Council v Price; Kay v London Borough of Lambeth. Neuberger LJ at para 13:"Finally, there is a suggestion …that the decision in McPhail [which held that there was no power to suspend an order for possession against a trespasser] may be inconsistent with the European Court on Human Rights jurisprudence on Article 8, in a case such as this, where the trespasser is occupying as his home. It is fair to say that some support for that view is to be found in the speech of Lord Bingham of Cornhill in the Kay case (see paragraph 37). However, Lord Bingham was in a minority in that case. It seems to me quite clear from the passages I here identified in the speeches of the four members in the majority in that case that they came to a contrary view." Parenthetically, Neuberger LJ also held that s89 of the 1980 applies in the High Court, approving the decision in Stanley Burnton J in Hackney London Borough Council v Side-by-Side (Kids) Ltd [2003] EWHC 1813 and disapproving the decision of Harman J in Bain v The Church Commissioners [1989] 1 WLR 24.
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