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31 Jan 2024

The estate manager strikes back - newcomer injunctions…

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The scenario

You're an estate manager. You manage a number of different types of property including retail parks and some high profile central London offices. The occupier of your main office building is a large financial institution which has provided finance to a major oil company.

You've had a number of issues with trespassers over the years. In the case of one of the retail parks, you've had ongoing issues with travellers moving onto an undeveloped part creating a nuisance for the other occupiers. Whilst you've blocked some, others have simply taken their place.

For the offices, which always used to be a low maintenance asset, you've had repeated issues with anti-oil protestors climbing onto and occupying a balcony area, which is both intimidating and dangerous.

But what can you do? The police don't seem interested and the advice you had a few years ago was that even if you do take offenders to court, they'll just be replaced by someone else, so what's the point?

The good news – newcomer injunctions

The Supreme Court has recently looked at this issue in detail and has come up with a new class of remedy - so called "newcomer" injunctions.

The court has now confirmed that it has the power to grant an injunction against persons who are unknown and unidentified as at the date of the order. Notably this includes people who have not yet committed or threatened to commit the acts which the injunction prohibits, i.e. "newcomers". From a practical perspective that makes a huge difference. In an age where protestors and trespassers can quickly and easily organise themselves on social media, identifying individuals is pretty much impossible. Newcomer injunctions mean that you no longer need to.

If someone breaches an injunction, that's a serious offence which could mean that they are sent to prison.

Are they easy to obtain?

No.

Newcomer injunctions will only be granted where the court thinks it is just to do so.

Because of their potential impact on civil liberties, the court has, not surprisingly, said that newcomer injunctions should be seen as a last resort. So before getting a newcomer injunction you'll need to show that you've taken significant steps to give notice to people who may be affected by it. In addition, you'll need to establish that there's no real dispute about whether the offenders have any rights to do what they're doing on your property - in our scenarios that shouldn't be an issue. Finally, if you can think of any objections that a third party might raise you must disclose those to the court and you must allow objectors a wide ability to apply to have the injunction set aside.

Time limits and geographical limits

Assuming you can do all of those things, can you get an injunction to protect all of your properties that lasts for ever?

No.

Newcomer injunctions won't be used to protect against actual or anticipated "one off" incidents. The focus is on preventing repeated incidents or ongoing threats, where there is real harm and where other remedies are unlikely to provide sufficient protection.

Because of the draconian effects of a newcomer injunction, the courts are unlikely to grant them for longer than a year – but you can apply for renewal after that time.

Similarly, you won't get a blanket injunction to protect all of your properties just because it would be convenient to do so. You'll need to show a specific and real need for each property.

The key message…

Whilst newcomer injunctions won't be easy to obtain, they are a valuable new tool in the armoury of the estate manager. If you find yourself driven to distraction by repeated trespass, protests or other direct action, newcomer injunctions give you the opportunity to proactively take preventative action to stop further breaches.

This is a broad overview of a complex area, and a lot depends on individual facts and circumstances. For detailed advice about who has rights to access your land and/or how to prevent one off or repeated trespass or protests or for any further information on newcomer injunctions, please get in touch - our expert team would be delighted to help.

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