Lyn Crawford looks at what property owners, developers and contractors can do about "urbexing".
A concerning popular trend is the increasing phenomenon of “urban exploring” or “urbexing”, which has been on the rise since the start of the pandemic. Urbexers gain access to a site and post triumphant videos on social media, often having taken huge risks by free climbing the outside of a building or scaling a tower crane. Not only do the urbexers often put themselves in extreme danger, developers and contractors are also put at risk in protecting sites.
Whether it is residential, commercial, retail or industrial, for parties involved in renting, selling or developing properties then inevitably there will be times when sites are unoccupied, particularly for an extended period of time as a result of temporary closures due to the Covid-19 pandemic. Meanwhile, construction sites also continue to be an attractive but dangerous playground to some, especially over school holidays.
While most property insurance policies contain conditions applying to unoccupied buildings and security measures, these relate in the main to taking extra precautions to prevent more typical losses through theft and damage by fire or flood. Property owners, developers and contractors could also face expensive litigation claims if someone manages to break into the property and subsequently suffers an injury. Whether invited or not, site owners and occupiers still have a duty of care and statutory obligations to those who access a property.
Urbexing raises novel challenges of how parties can protect their property, reduce the risk of loss or damage and insure against potential liabilities, which go beyond the usual concepts of trespass, occupiers’ liability and health and safety risks.
Some of the hazards of urbexing are obvious – free climbing tower cranes, often at night; standing on the edge of skyscrapers – and other risks which are not so obvious, such as incomplete or temporary structures, hidden holes and sudden drops. As well as the dangers to urbexers themselves, security staff and employees of the construction companies and emergency services are also put at risk in protecting sites. Whilst urbexers are rarely aggressive, early responders are at risk when giving chase amidst the dangers of a construction site.
Construction companies can implement robust security measures in an attempt to deter this activity, but this can never serve as a complete deterrence to the determined urbexer. This is demonstrated by a recent YouTube post with a video taken from a tower crane which is entitled “Sneaking into the world’s most guarded construction site”.
In March 2021, Mace and the site owners successfully obtained an injunction against ‘persons unknown’ in an attempt to prevent urbexing at a construction site at 40 Leadenhall Street. Mace is contracted to construct a 37 storey building set to be the 10th tallest building in the City of London, which is one of around 25 major construction sites in central London.
Whilst there had been no known incursions at the site, Mace had recorded 10 instances of urbex trespass at their sites across London since June 2020. They had also recorded 17 known deaths of urbexers around the world since June 2013, most recently at a site in Waterloo.
In the Mace case the Judge was told that since 2018, all but one of the construction sites in London involving buildings of 150m or more had been targeted by urbexers (the one exception being a site in Canary Wharf, also the subject of a pre-emptive injunction). The Judge also noted that once targeted, some companies and site owners have applied for injunctions to prevent further trespass, and there have been a number of contempt proceedings as a result (including a 26 week custodial sentence for the free climber who scaled The Shard).
So why seek an injunction against ‘persons unknown’? It is hoped that the injunction will have a deterrent effect and there is evidence that determined urbexers will take notice that entering a site in breach an injunction may lead to time in prison rather than the civil wrong of trespass. Proceedings for trespass can also sometimes present difficulties if the trespasser is transient only and leaves site peacefully without causing any damage.
The High Court’s approach in granting the injunction does not relieve property owners and contractors of the responsibilities to keep properties secure. It remains important that construction sites are left in as safe a state as possible to mitigate against the risk of loss, damage and injury. When faced with the threat of trespassers and urbexers, insurers of property owners and contractors are advised to include conditions requiring policyholders to take measures to secure the land physically – whether with barriers, guards or surveillance – and carry out regular risk assessments and inspections to identify reasonably foreseeable activities. Whilst application for an injunction should be considered a last resort, it should be welcomed that the courts are now more willing to take a pragmatic approach to protecting landowners from unauthorised use of their properties.