Managing trespass, fly-tipping and nuisance risk

Trespass and legal remedies: What landowners need to know

Trespass is the unlawful interference with land. It may involve entry onto private land without permission; refusal to leave when asked; causing damage (including waste dumping); and/or obstructing access roads or operational sites.

A complicating factor, when taking effective legal action, has historically arisen from the fact that the identity of trespassers is often unknown. The Supreme Court’s decision in Wolverhampton CC v London Gypsies & Travellers [1], however, confirmed that courts can grant injunctions, known as ‘newcomer injunctions’, barring trespass against ‘persons unknown’, including people who can’t be identified at the time the injunction order is made; haven’t yet arrived on site; or haven’t yet threatened trespass, but may do so.

Breach of an injunction amounts to contempt of court, which can be punishable by fines, seizure of assets (including vehicles), or even imprisonment.

Newcomer injunctions are therefore a significant remedy and a deterrent which can materially reduce site incursions. They can be particularly helpful for landowners with sites housing critical infrastructure; food and defence facilities; energy, utilities and waste operations; and those previously targeted by protest or criminal activity.

The Supreme Court in Wolverhampton CC emphasised that, to obtain a newcomer injunction, a landowner will need to establish:

• A compelling need to protect property rights
• No adequate alternative remedies
• Clear limits on duration and geographical scope
• Reasonable steps to bring the injunction to the attention of those affected. Helpfully, courts now accept QR codes, websites and digital service, alongside more traditional methods (such as hand-delivery/personal service, erecting notices, etc).

Trespassers can also be liable to pay financial compensation to landowners for damage caused to the site and/or devaluation. Where the identity of trespassers is unknown, however, enforcement of an order for damages can be difficult, if not impossible.

Fly‑tipping: environmental and nuisance exposure

Fly-tipping – the illegal disposal of household, commercial, industrial, hazardous or clinical waste – is a common corollary to trespass. Fly‑tipping and depositing waste from a vehicle are criminal offences under the Environmental Protection Act 1990 (EPA), but police action and criminal prosecution can be difficult where the identity of perpetrators is unknown.

And a critical point for landowners is that, if waste is dumped on private land, the landowner becomes liable to remove it.

Local authorities and the Environment Agency (EA) can serve notices on the landowner requiring removal. They can also prosecute the landowner for failure to comply and/or recover their costs if the authorities step in and clean the site themselves.

Fly-tipping or other damage caused by trespassers can also trigger statutory and/or private nuisance liability for the landowner. For example, local authorities may serve abatement notices under the EPA and/or landowners may face civil claims where deposits risk health (for example, in the case of hazardous materials, medical waste or chemicals), generate odours or noise, or otherwise interfere with a neighbour’s enjoyment of land.

Fly-tipping represents a legal and operational headache for landowners. The direction of traffic signalled in the Department for Environment, Food & Rural Affairs’ (DEFRA) Waste Crime Action Plan signals a tougher enforcement landscape ahead, with enhanced funding for waste crime enforcement, proposed police‑style (search, arrest, seizure) powers for EA officers, cleanup penalties, and even penalty point driving licence endorsement and/or disqualification for fly-tippers on the horizon. The Plan indicates that indemnity insurance against illegal waste dumping on land and/or a Landfill Tax rebate scheme could help support affected landowners. Whether/to what extent such measures come to fruition is something for landowners to monitor.

Related concerns

Alongside the potential legal and environmental risks, trespass and fly-tipping can expose landowners to related concerns.

For example, the presence of trespassers and/or waste can cause significant disruption to a business – sometimes even bringing operations to a standstill. Where that results in a business then failing to fulfil orders or otherwise comply with commitments, consequential breach of contract and/or reputational consequences may flow.

A backdrop of [geo]political and economic uncertainty can prompt additional tensions, causing associated risks posed by protestor trespassers, to run particularly high.

And, apart from the day-to-day running of any business on site, landowners need to consider the integrity and safety of any onsite buildings/infrastructure, staff and visitors.

In fact, landowners may even owe occupiers’ liability duties to the trespassers themselves, if hazardous conditions on site pose risks.

Preventing and managing incidents

So what can landowners do to prevent and manage the various legal and practical risks associated with trespass/protest/fly-tipping?

Proactive measures

Firstly, there are some measures which can be undertaken proactively – both to minimise the risk of trespass incidents occurring, and to facilitate fast and effective action if/when they do:

Audit portfolios/sites and prepare early for injunctions-

• Identify the extent, legal boundaries and ownerships of sites
• Identify and secure entrances, exits, site-specific vulnerabilities/features
• Instruct external legal advisers to pre-prepare/maintain site-specific outline court documents
• Develop, and train staff on, a ‘Trespass Incident Protocol’ (site-specific, where appropriate), with decision‑makers identified.

Security and deterrence

• Erect, secure and maintain gates, barriers, bunding and signage
• Erect, secure and maintain effective lighting, surveillance and security arrangements
• Implement and maintain rapid removal of own/the business’ waste.

When an incident happens

Trespass, and in particular, protest incidents often arise in highly pressured situations and there is often real urgency. Remaining calm throughout the process, however, can help to keep stress levels, and mistakes, to a minimum. Already having in place, and following, a ‘Trespass Incident Protocol’ (as mentioned above), and having an experienced, expert team around you, can also help you respond as effectively and efficiently as possible when trespassers turn on up site.

Key steps include:

• Gather evidence of what’s happening on the ground. Log time, location, and any vehicles or individuals involved. Take photos, videos, and written notes. Monitor and record throughout the incident
• Contact the police immediately
• Engage legal advisors regarding injunction, possession action, and/or damages claim
• Check boundaries/access and confirm ownership or leaseholder responsibilitie
• If fly-tipping occurs:

1. Assess the type of waste: hazardous or non-hazardous
2. Take specialist advice regarding notifying the local authority/EA
3. Arrange removal using a licensed waste carrier
4. Document all disposal steps for duty-of-care compliance

After the event

When the immediate incident is under control or over, landowners should take the opportunity to learn from the experience and to plan improvements to reduce or mitigate the risk of potential recurrence. That can involve reviewing/updating site security measures and honing any trespass response protocols. Businesses/landowners should also check relevant insurance policies in case claims be made to recoup losses, manage/mitigate any operational disruption, and should take advice on any consequential legal allegations or claims.

How we can help

Our cross disciplinary legal specialists are experienced and expert in both advising pre-emptively, and responding quickly and effectively, in relation to trespass incidents – including where protestor action or fly-tipping is involved.

Our Commercial Dispute Resolution specialists can assist with the preparation of, and delivery of staff training on, trespass incident protocols tailored specifically to your business/sites. When incidents do occur, we can help with urgent instigation of court proceedings to recover possession and for injunctions (including ‘persons unknown’/’newcomer’ injunctions), as well as with strategic management of protest activity and recovery of losses against known offenders and potential consequential nuisance and/or breach of contract claims. We can also help with portfolio/site boundary and access reviews and advising on lease or contractual provisions allocating waste disposal obligations.

Our Environmental & Regulatory specialists can advise on EPA duties and statutory nuisance; pollution liability and regulator engagement; waste duty of care compliance; and, where required, responding to enforcement notices.

We can also work closely with our Commercial and Tech specialists to provide comprehensive legal advice surrounding procurement of CCTV, ANPR and other security/monitoring solutions, data protection compliance for surveillance systems, and digital waste tracking integration.

Please contact Nick or Rachel for further information or advice.

[1] [2023] UKSC 47