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Site Possession

Paper number

H Jane Ryland

February 2022

This paper considers some of the issues that arise for the employer and contractor when faced with third parties trespassing on a construction site in England and Wales. These comprise such issues as: Which party has ‘possession’? What does ‘possession’ mean? What options and steps are available to the development team to enable the works to proceed? The paper is illustrated by reference to the JCT Design and Build 2016 and considers contentious and non-contentious aspects and practical advice. The author considers express and implied terms, the relevance of the CDM Regulations, case law and authoritative texts, and the use of CPR 55, injunctions, and the Animals Act 1971.

Introduction – Terminology and definitions – Displacing the implied term – Cases – The ‘test’ in Hounslow – Authoritative texts – Unauthorised occupation – The Animals Act 1971 (as amended by the Control of Horses Act 2015) – Self-help – Securing the Site – Adverse possession – Conclusion

The author: H Jane Ryland is a solicitor and adjudicator.

Text: 15 pages