From abandoned tube stations and former WW2 bunkers to cranes and skyscrapers, it seems barely a week goes by without a news story (or Instagram post) appearing showing an urban explorer in an area once thought of as off-limits.
A quick YouTube search brings up over 36,000 results for “urban exploration skyscraper” and “urbex” (as urban exploration is widely known) shows over 1,000,000 hits – these terms combined have tens of millions of views.
The trend, largely fuelled by social media, potentially causes legal issues (“unjustifiable” intrusion onto land owned by another person is trespass) and, in some cases, can be fatal.
Unsurprisingly, urbex comes with a number of inherent risks to the individual – from straightforward dangers such as injury from falling or poor structural integrity to lesser-known issues such as the health hazard of historic asbestos. Property owners can owe a duty of care to a trespasser if they are aware of a hazard on the premises which they believe the individual may come across and they should reasonably be expected to protect against.
Additionally, a trespasser may damage the premises and, in these times of heightened security, the access of unauthorised individuals undermines the valuable work done by landowners to keep their occupiers and visitors safe.
So. What is a property owner to do when faced with these potential risks?
From a non-legal perspective, property owners and managers should be adding safeguards to prevent access to at-risk areas. These can include displaying visitor guidelines, carrying out regular inspections, installing physical security solutions such as fencing, gates and doors, alarms, CCTV and employing security officers.
From a legal perspective, trespass isn’t generally a criminal offence but a civil one and is actionable in the courts whether or not any physical damage has been caused. If the police do attend it is likely to be solely to observe for potential criminal offences such as damage to property.
A landowner is only entitled to use reasonable force to eject a trespasser and, whilst it can be possible to recover damages in the civil courts, in reality, this is of little value. Urbex is generally a temporary activity and, once identified, individuals are often willing to leave – substantial compensation is only likely where items have been removed, damage caused or the landowner is deprived of his use of the property.
However, there is some light at the end of the tunnel. Where there is a genuine risk of future trespass, the civil courts may be willing to grant an injunction to prevent a trespass before it happens. If the injunction is then deliberately breached the person will be in contempt of court leading to a potential fine or imprisonment – a considerable deterrent where previously there was none.
These injunctions can be granted against specific named defendants or “Persons Unknown” (or a combination of the two). Whilst it can appear simpler to solely proceed against “Persons Unknown”, caution should be exercised as it may be harder to demonstrate that anyone in breach knew of (and therefore deliberately breached) the court order. The courts and landowners therefore may need to get creative – in addition to posting copies on the premises, the injunction may need to be emailed to social media groups or organisations likely to be caught by it.
This year, Canary Wharf Investments (“CWI“), were concerned about five urban explorers who had been climbing buildings and cranes on the Canary Wharf estate and posting pictures of their exploits on social media.
CWI made an application for an injunction against them and “Persons Unknown” to prevent future trespass and to require them to deliver up their media materials. There was significant evidence to show that, without the injunction, the defendants would continue to trespass.
The High Court was ultimately satisfied that the injunction was suitable and that its terms were correctly formulated to be proportionate and only capture those engaging in the undesirable conduct.
Whilst there are some hurdles to overcome in order to obtain these injunctions, many readers will remember the issues relating to squatters rights from recent years and this case shows further evidence that the courts are now more willing to take a pragmatic approach to protecting landowners from unauthorised use of their properties.