Wokingham Borough Council v Dunn & Anor

LORD JUSTICE SULLIVAN: This is the adjourned hearing of an appeal against the order dated 6 March 2014 of His Honour Judge Seymour QC sitting as a Deputy High Court Judge committing the first, second and third appellants to prison for four months for contempt of court in failing to comply with a planning injunction which was made on 23 April 2013 in respect of land known as The Copse, Eversley Road, Aborfield Cross, Reading, Berkshire.

While we do not have a copy of the judge's judgment, we do have a very full note of the judgement which was prepared by Mr Robb who represented Wokingham Borough Council, the local planning authority, before the judge and who also represented the Council on this appeal.

When the matter was last before the court on 27 March, Mr Field, who appeared then and appears today on behalf of the three appellants, confirmed that he did not challenge the accuracy of Mr Robb's note of the judgment. The lengthy planning history leading up to the making of the injunction is set out in some detail in the judgment, and it is unnecessary to repeat it for the purposes of this appeal. The injunction required the appellants to do three things: firstly to clear the site of all manner of items, including vehicle skips, vehicle parts and so forth by 12 June 2013; secondly, between September and October 2013 to restore the land by top soiling and seeding it; and thirdly not to permit any further occupation of the caravans and mobile homes that were on site other than by their then existing occupants. Those occupants were listed in a schedule, schedule C, to the injunction.

When the planning authority's application for committal came before the judge on 6 March 2014, there was no dispute that these requirements of the injunction had not been complied with. The sole basis of the first appellant's defence was set out in his witness statement in which he said that he had transferred the freehold ownership and that he did not at the material time own or have any legal interest in the land which was the subject of the enforcement notice. He therefore asked the judge to be discharged as a defendant.

The third appellant also provided a witness statement dated 5 March 2014 in the proceedings before the judge. In that witness statement he said that he and his mother, the second appellant, owned the site. He confirmed that they were responsible for complying with the first two requirements of the injunction, that is to say clearance and restoration, but he explained that while the site had not been cleared by 12 June 2013 it had been fully cleared at the date of his witness statement. Because of the delay in clearance, he said that it had not been possible to restore the site but that he and his mother intended to restore the site in the next planting season. That would be in April or May this year, 2014.

His explanation for the failure of himself and his mother to comply with the prohibition on the further occupation of the caravans on the site was that the occupation of the caravans was controlled by a company called Crown Park Enterprises of which his brother William Dunn was the Director. He asserted that neither he nor his mother had any control over the activities of the Company. He further said that the Company leased the land on which the caravans were situated under the terms of a verbal agreement and paid his mother the sum of £800 per month.

In a later passage in the witness statement he said that having taken legal advice, he and his mother were aware that they could terminate the agreement with the Company and had informed the Company that unless the Company took action to evict the occupiers of the caravans who should not be on the site, then they would terminate the agreement with the Company.

Before the judge there was a document exhibit LT5 to the witness statement of Leslie Thomas Dunn which was an undated, unsigned, letter with no addressee from Crown Park Enterprises Ltd, which said that the Company had let the land in question from the second and third appellants for the last three to four years at a rate of £800 per month which was paid to the second appellant, and that had been agreed under a verbal contract. It was said in the document that the Company was solely responsible for the letting of the caravans. When the matter was last before the court, we pointed out to Mr Field, and he very properly accepted that we had no further information about even the existence of Crown Park Enterprises Ltd. There was no information from Companies House, for example, as to when the Company was registered, what its objects were, who were its directors, shareholders, and so forth. Nor did we have any more information as to the alleged "letting" of the land in question to the Company other than the fact that we had been told that £800 per month was paid to the second appellant. We had been given no details as to the basis on which the land was let to the Company.

That was the evidential position when the judge had considered the application for commital. The judge rejected the appellants' defences. He said in respect of the first defendant that even though he had apparently transferred the freehold of the land in 2011 to his wife and son, the second and third appellants, it had been accepted that he had remained in the position to influence the activities on the land, see paragraphs and 48 of the note of his judgment. The judge said that he regarded the contention that the first appellant had no opportunity to influence his wife or son to obey the injunction as absurd.

In respect of the defence that was at that stage being advanced by the second and third appellants, the judge concluded that they could have complied with the requirements of the injunction to clear and restore the site within time, if necessary by employing other contractors, see paragraphs 36 and 37 of the note of the judgment. And the judge did not accept that the second and third appellants were unable to prevent further occupation of the caravans. He concluded, in paragraph 39, that:

"It's obvious that L Thomas Dunn and his mother Debbie Dunn if they had actually intended to comply with my order would have been able to ensure that no further occupations took place after the original occupants listed within schedule C of the order which was provided to the court left their mobile homes."

The judge said that it had been accepted that there had been serious breaches of the order and he referred to the unhappy planning history accurately, in my judgment, summarising that history as the family consistently raising two fingers at the local planning authority.

When considering what was the appropriate remedy to deal with what he very properly described as the flagrant breaches of the order, the judge said that he was prepared to proceed on the basis, which at that time the local planning authority had not been able to verify, that the site had actually been cleared, but the judge observed that this had been done only in January 2014, some seven and a half months late. The judge said that while he had been told that reseeding would take place in April or May, weather permitting, he had been offered nothing, and that no worthwhile assurance had been offered in respect of the fresh occupancy of the caravans.

Although Mr Field submitted that the judge's sentence of four months' imprisonment was excessive because the sentence should have been suspended, I have absolutely no doubt that on the material before the judge, he was fully entitled to impose a sentence of immediate imprisonment. There were indeed flagrant breaches of the injunction. The appellants were attempting to evade responsibility for those breaches. The first appellant was seeking to deny responsibility outright on the basis that he had had transferred the freehold ownership of the land. The second and third defendants were seeking to evade responsibility for the failure to comply with the third limb of the injunction on the basis that they had no control over the Company which was the controller of the occupancy of the caravans. So before the judge, there was no acknowledgement of responsibility, no apology of any kind, no indication of the slightest remorse and, most importantly, the requirements of the injunction had not been complied with.

Before this court at this adjourned hearing there is further evidence that was not before the judge. In summary, Mr Robb has been able to confirm on behalf of the Council that there has now been full compliance with the requirements of the injunction; that is to say the site has been cleared. It has been top soiled and reseeded. There has been an inspection of all of the mobile homes by one of the Council's officers. Although one of the caravans on the site is still occupied, it is accepted that that occupier, while not identified as one of the principal occupiers of schedule C is one of those occupiers who was entitled to remain on the site.

So the position before us now is that albeit very belatedly the injunction has been complied with. While there were originally no less than seven substantive grounds of appeal, a number of them repeating the legal arguments as to responsibility which had been advanced before and rejected by the judge; Mr Field this morning, having taken instructions from his clients who are present in court, has confirmed that only one ground of appeal is being pursued, the ground that I have mentioned. That is to say that a sentence of immediate imprisonment was excessive and the judge should have imposed either a suspended sentence and/or considered a financial penalty. It is important therefore to place on the record that the first appellant, through his counsel Mr Field, has accepted that although he disposed of his freehold interest in the land to his wife and one of his sons, he nevertheless exercised a sufficient element of control over the activities that were taking place on the land as to be responsible for compliance with the requirements of the injunction. He accepts therefore his responsibility for complying with the injunction and that he failed to comply with the injunction.

So far as the second and third appellants are concerned, while we have been provided with Companies House information which establishes at least the existence of the Company and the fact that its sole Director and shareholder is indeed William Dunn, the second and third appellants have accepted through their counsel that they were in fact capable of exercising sufficient control over the Company so as to secure, had they wished to do so, that it complied with the terms of the injunction. We do not have any more substantive information about the alleged letting to the Company but Mr Field very properly accepted that, on the face of it, it would appear that at best the Company had some form of licence from the second and third appellant and the licence, given that the "rent" was being paid at a rate of £800 per month, would have would have been terminable by the second and third defendant had they wished to do so in order to secure compliance with the terms of the injunction on a month's notice. In fact, Mr Field told us upon instruction that in addition to the £800 a month that was paid to the second appellant, the third appellant was in fact paid another £800 per month by the Company for helping the Company with its activities on the site. Moreover, it was frankly acknowledged through Mr Field that the second and third appellant had not in fact had to rely on any legal rights vis a vis the Company. They had simply been able to prevail upon Mr William Dunn as one of the family, and the sole Director of the Company, to comply with the requirements of the injunction in respect of the occupation of the caravans upon the site.

So the position now is that all of the appellants accept, as they did not accept before the judge, that they were indeed responsible for the admitted breaches of the terms of the injunction and through counsel they have apologised for those breaches. In addition to those matters, the second appellant's second witness statement also contains evidence as to the medical condition of both himself and his parents. I do not think it is necessary to read out the details. They are supported by letters from his parents' General Practitioners. We have taken them very carefully into account.

In all of these circumstances, I, for my part, am persuaded that while the judge was fully justified in imposing the penalty that he did, it would, in the circumstances that now exist, be an excessive penalty to impose a custodial sentence. There is undoubtedly here a very grave planning history and the appellants must understand, to put it bluntly, that while it is one thing to put two fingers up to the planning system, it is quite another thing to put two fingers up to the court. People who do that tend to get put inside unless there is a very good reason not to do so. I am just persuaded that there is a sufficiently good reason in the circumstances that we now find ourselves in and for my part I would impose a significant financial penalty. I have already mentioned that the second and third appellants have each been receiving £800 per month from the Company. Thus for a period of ten months they have been paid together £1,600 per month. It is a fair inference that that money would not have been paid if they had not been permitting the Company to breach the terms of the injunction. I say that because the payments, we are told, stopped some two months ago, and that is broadly within the timescale within which it was claimed that the Company began to comply with the requirements of the injunction as to occupancy.

So effectively we have £1,600 per month over a period of ten months that was obtained by the second and third defendants because of a deliberate failure to secure compliance with the injunction. In all of these circumstances, I would propose that we set aside the judge's order of 4 months' immediate imprisonment, and substitute a financial penalty of £20,000 for which all three appellants are to be jointly and severally liable. Our order at the previous hearing required them to pay the costs of the adjournment on an indemnity basis. It is plain that they had to come here today in order to have the custodial sentence set aside. They must therefore pay the costs of this application and they must do so also on an indemnity basis. So the order that I would propose is a fine of £20,000 together with the costs of this hearing on an indemnity basis.

LORD JUSTICE KITCHIN: I agree.

LORD JUSTICE FLOYD: I agree, and I agree with the order that my Lord proposed.