The word "trespasser" may well send a shiver down the spine of many commercial landowners. Trespass can take a number of different forms, from squatters in empty commercial buildings, to travellers on empty land, or protestors occupying land to gather publicity for a particular cause. While squatting in residential buildings is now a criminal offence, the criminal law does not so easily assist for commercial land. Instead, regaining possession of commercial land following incursion by trespassers can be a fraught, costly and time-consuming exercise for the landowner, often involving court proceedings and bailiffs, and resulting in an expensive clean-up and repair operation after possession is obtained. There is now an opportunity for landowners, developers and other interested parties to comment on proposals for improving the system.
The Government's recently announced consultation on "Powers for dealing with unauthorised development and encampments" is welcome recognition that the current system needs to be strengthened to give greater powers to commercial landowners to deal with trespass incidents swiftly and without having to incur significant expense. Although the consultation is expressed to be directed predominantly at what the Government terms "unauthorised encampments" set up by the travelling community, given the statutory mechanisms for dealing with trespass are essentially the same for all categories of trespass on commercial land, the consultation has the potential to benefit commercial landowners more broadly.
In the consultation, the Government looks to gather evidence of "unauthorised encampments" and the consequent costs to landowners of regaining possession and cleaning up the land. A key set of questions focuses on the efficacy of the police powers to move trespassers on under the Criminal Justice and Public Order Act 1994, which can be difficult to invoke even when the statutory tests are met, and whether these powers should be extended. Another suggestion is whether trespass should in some circumstances be criminalised, as is the case in the Republic of
Ireland.
The consultation also covers issues of cooperation between the police, local authorities and communities, and the efficacy of the court possession order process generally and specifically related to the Interim Possession Order route, all of which have the potential to be strengthened to assist commercial landowners.
Interested parties consequently have the opportunity to comment on a number of aspects of the process for dealing with trespassers. With such broad questions, the consultation provides scope for a wide array of suggestions to improve the current system and deal with sticking points such as the lack of enforcement of police powers or the length of time needed to obtain a court order for possession absent justification for involving the High Court. However, the extent of Parliament's appetite for substantial legislative reform in this area remains to be seen.
The consultation is open for responses until 23:45 on 15 June 2018, and can be accessed and responded to online here.
Authors: Judith Smyth, Associate and Matthew Bonye, Partner and Head of Real Estate Dispute Resolution, London
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