London Borough of Southwark v Connor & Ors

A person who permits activity on an employer’s land must act within the scope of actual or ostensible authority. Permission to carry out limited beneficial works does not authorise substantial construction or commercial waste operations. Unauthorised deposits of material constitute a trespass for which the responsible parties are liable in damages.

An employee’s failure to prevent unauthorised activity is not necessarily a breach of the duty of good faith. Liability depends on what the employee knew and when, including whether a failure to disclose or intervene caused loss. A party seeking urgent without-notice relief must give full and frank disclosure and present disclosed facts fairly. Material non-disclosure may justify discharge of injunctions, even where substantive claims succeed.

The claimant local authority sued its former cemetery manager, an individual waste operator and his company. It alleged that they had colluded in the unauthorised tipping of waste at cemetery land, the construction and use of a yard, breach of fiduciary and contractual duties, nuisance, trespass and conspiracy.

The surviving claims concerned two areas at Honor Oak Cemetery. The defendants disputed responsibility, authority, causation and quantum. They also alleged that the proceedings had been brought in bad faith and challenged freezing and search orders obtained without notice in January 2009 on grounds of material non-disclosure.

The central issues were the scope of the cemetery manager’s authority, the defendants’ responsibility for the deposited material, the manager’s personal liability, mitigation, and the consequences of deficiencies in the without-notice evidence.

1. Liability for unauthorised activity. The cemetery manager had authority to permit limited quantities of scalpings, crushed concrete and topsoil for cemetery purposes, and limited storage of equipment. He lacked actual or ostensible authority to authorise construction of the substantial yard. The operator and his company substantially exceeded the permission given and were liable for the unlawful deposits in the yard and on Area 1.
2. Manager’s liability. The manager was not liable merely because he unwittingly failed to prevent the operator exceeding the permission granted. However, by about the middle of 2007 he appreciated that the activity had gone beyond what was authorised and should then have involved senior management. His liability was therefore limited to loss attributable to that later failure.
3. Bad faith and mitigation. The evidence did not establish that the claim was brought in bad faith to avoid an investigation or prosecution under the Environmental Protection Act 1990. The authority was entitled to reject informal offers by the defendants to remove the waste while the investigation remained at an early stage. It had acted reasonably in adopting a robust removal scheme.
4. Without-notice relief. The claimant’s affidavit materially overstated the defendants’ admissions, failed fairly to present the history and authorisation of works at Camberwell Old Cemetery, gave inadequate evidence concerning Nunhead, and omitted serious remediation options being considered. The duty of full and frank disclosure required both material facts and a fair presentation of disclosed facts. The injunctions were therefore to be discharged, subject to consequential submissions.
5. Relief. Judgment was entered against all defendants for £163,651 representing 70% of the cost of removing the yard walls. Judgment was entered against the second and third defendants for £873,104 representing 40% of the Area 1 materials, subject to deductions and further assessment. Further sums, including professional fees and the manager’s proportionate liability, were left for agreement or further argument. The claims against the manager for secret commissions were dismissed.