Maidstone Borough Council v Langley Frank Beck & Ors

This is my judgment on the Claimant’s application to commit Mr Beck to prison for breaches of the Court’s Order ("the Order") dated 1 April 2021.

The Claimant is the Local Planning Authority pursuant to the Town and Country Planning Act 1990 (as amended) (“the 1990 Act”) for the Maidstone area.

On the 27th May 2014, the Claimant issued and subsequently served a planning Enforcement Notice pursuant to s172 of the 1990 Act.

There were two defendants. The Second Defendant, Mr Foot, has died. The First Defendant, Mr Beck, is the owner of land at Cotton Tree, Bell Lane, Boxley ME14 3EE (“the Land”) identified in a plan attached to the Order and a plan attached to the Enforcement Notice.

The land protected by the enforcement notice, and more recently the Order, is designated as Ancient Woodland and is subject to a Tree Preservation Order. It is a Special Landscape Area and forms part of the Kent Downs Area of Outstanding Natural Beauty.

The Enforcement Notice required Mr Beck to;

Mr Beck failed to comply with these requirements. Eventually the Claimant sought an injunction to require him to do so.

On 1 April 2021 Mr Beck was made the subject of an injunction order by the Court relating to unauthorised development at the Land of the sort which had been prohibited by the Enforcement Notice. The Order required that:

“1.

From the date of this Order the Defendants (individually or together) shall not themselves (nor cause, allow or permit another to):

a)

Occupy residentially for any period of time any caravan, mobile home, container or other temporary or permanent structure on the Land;

b)

Bring on to the Land any caravan, mobile home, motor vehicles (save for the purposes of complying with the other terms of this Order), motor vehicle parts, storage containers, portable buildings, building materials, waste (including hardcore, rubble, aggregates, soil, road scalpings or planings, chippings, timber, green waste, scrap metals or other domestic or commercial waste or any other waste material as defined for the purposes of the Town and Country Planning Act 1990 (as amended));

c)

Process any waste (including hardcore, rubble, aggregates, soil, road scalpings or planings, chippings, timber, green waste, scrap metals or other domestic or commercial waste or any other waste material as defined for the purposes of the Town and Country Planning Act 1990) on the Land;

d)

Lay or expand any area of hardstanding on the Land without an express grant of planning permission for the same pursuant to the provisions of the Town and Country Planning Act 1990 (as amended);

e)

Spread any building materials or waste (including hardcore, rubble, aggregates, soil, road scalpings or planings, chippings, timber, green waste, scrap metals or other domestic or commercial waste or any other waste material as defined for the purposes of the Town and Country Planning Act 1990) on the Land;

f)

Dispose of any materials or waste by burning on the Land;

g)

Fell any trees on the Land otherwise than in accordance with a felling licence granted pursuant to the provisions of the Forestry Act 1967 (as amended) or an express grant of permission for the same pursuant to the provisions of the Town and Country Planning Act 1990 (as amended).

2.

After the date on which this Order is made, should any caravan, mobile home, plant, machinery, storage container or portable building within the Land marked red on the Plan attached to this Order be removed from the Land, the Defendants (individually or together) shall not themselves (nor cause, allow or permit another to) return the said caravan, mobile home, plant, machinery, storage container or portable building to the Land, nor allow any other caravan, mobile home, plant, machinery, storage container or portable building on to the Land in replacement or substitution of the same.

3.

Within six months of the date of this Order the First Defendant shall:

a)

Remove from the Land all caravans, motor vehicles, motor vehicle parts, containers, portable buildings, building materials, waste materials (including hardcore, rubble, aggregates, soil, road scalpings or planings, chippings, timber, green waste, scrap metals or other domestic or commercial waste or any other waste material as defined for the purposes of the Town and Country Planning Act 1990), plant, machinery, highways equipment, and any domestic paraphernalia;

b)

Demolish and permanently remove from the Land the hardstanding on the Land;

c)

Remove from the Land all resultant rubble, waste, materials, and debris arising from compliance with requirements 3(a) and (b) above”

Mr Beck failed to comply with the terms of the Order. The Claimant formed the view that he had no intention of doing so. The committal application was issued on 7 February 2022.

In a witness statement of 31 March 2022, responding to the application, Mr Beck set out the background to his activities on the Land:

“4.

The Site is wooded with a number of trees, predominantly sweet chestnut coppice and birch. Since the mid-1980s, I have carried out various trades and activities on the Site including removing the trees, using the wood as logs and to make stakes and other fencing parts, selling timber from the Site, sorting and selling scrap metal and other recyclable scrap goods, bringing in, processing and selling building waste as well as general waste. I have brought in vehicles on to the Site either to refurbish them, to prepare them for export or to use them for parts. I have also operated a hard-core business from the Site and in the past rented parts of the Site out for similar businesses.

5.

These activities have involved bringing the following on to the Site – hard-core, building materials, building waste, building products like fencing and windows, general waste and timber as well as mobile homes, caravans, containers, vehicles, machinery and tyres on the Site. I have also laid hardcore on the Site for access and my businesses. I have lived on the Site since I bought it since the 1980s and on a full time basis for 19 years.”

In later paragraphs he explained the steps he had taken to comply with the Order:

“29.

I have a number of other valuable things on the Site. These include vehicles which could be refurbished or reused for scrap, fencing material and windows. I am currently refurbishing a lorry which will assist me in taking items off the site. I have had security issues on the site and people have burnt waste on my land. People have tipped rubbish onto my land and I have had to install gates to stop this from happening. I understand that I can do these under the permitted development rights.

30.

I have also halted all my businesses since I received the Order and I have not been able to earn an income. Prior to the Order, I had stopped taking in household waste. I have also cleared away waste including removing all the fridges and freezers and have removed all of the vehicles not belonging to me as well as the caravan. I have stopped allowing people to work on the Site and have told people that I am no longer able to provide storage facilities or accept household waste. I have not chopped down any trees since the Order.

31.

I ordered 3 portacabins to put on my house on the Site because the roof was leaking badly. The portacabins were ordered before the Order and because of the leak, I had to install them. Apart from this, I am complying with paragraphs 1(b) to (g) of the Order and according to paragraph 2 of the Order; I do not intend to return these things to the Site until this matter is resolved.

32.

Specifically since 1 April 2021, when the Order was made, I have tidied up the Site by putting materials and scrap metals in piles instead of leaving them lying about. I cannot get on effectively with clearing the Site because the Order prevents me from burning waste and wood or from doing anything that the Council might interpret as levelling the Site. The Second Defendant’s son, following Mr Foot’s death, has taken time off work in February and March 2022 to clear some of his father’s belongings including a tractor and 6 to 7 motor vehicles in compliance with paragraphs 1(b) to (g) of the Order. He has not taken all of his father’s things off the Site.”

It seems evident that at the time he made his witness statement he intended to continue to seek to comply with the Order subject to the concerns he expressed as to his means of doing so and his accommodation needs:

“34.

I intend to demolish 3 caravans on the Site but I would need to burn the wood. I also intend to remove the rest of the general waste. In relation to general waste, I intend to apply for an amendment to the Order to be able to burn the waste. I also intend to remove all rusty unworkable material. I do want to keep the timber, fencing parts, windows, tyres, blocks of building material, tarmac and some vehicles somewhere. I would rather not lose these as they cost and are worth quite a lot of money. If I had to move them off the Site, I would need money, and a reasonable period of time to move them. I appreciate that the Order has been in place since April 2021 but as I have explained, now that I have been fully and properly advised, I would need more time to deal with these items…

37.

If I have to leave the Site in any event because of what is stated in the Order I also will not be able to carry out any of the works required under paragraph 2 of the Order. I would also have nowhere else to go. I am therefore at a loss when it comes to complying with this particular part of the Order and asked my lawyers to apply for an amendment to the terms of the Order so that I can actually sort out the Site...

41.

I do realise that I have not received however the most helpful or accurate legal advice in the past and I am coming to terms with that. I do respect the Court and am making real efforts to try to resolve things.”

There are outstanding criminal proceedings against Mr Beck in the Crown Court at Maidstone for breach of the Enforcement Notice. On 14 November 2022 he entered guilty pleas. Sentence is adjourned pending the outcome of the committal proceedings in the High Court. A pre-sentence report was prepared which was in evidence in the committal application.

Mr Beck’s capacity to conduct litigation was raised as an issue in the course of the committal proceedings. The issue was determined on 14 December 2022 when he was found to have capacity by Heather Williams J. It does not appear that her decision was reflected in an order but, before me, both counsel accepted that this was the outcome. Mr Beck had also been found to be fit to plead in the Crown Court.

On 20 December 2022, the matter was again before Heather Williams J for the hearing of the Claimant’s application to commit. Mr Beck accepted on that occasion that he had breached the injunction in the respects listed at paragraph 17 of the committal application.

In summary the accepted breaches are:

Although Mr Beck accepted that he was in breach of the Order, the separate matter of his ability to comply with the injunction order as a result of his psychiatric conditions was also raised at the hearing on 20 December before Heather Williams. J. The matter was adjourned for further psychiatric reports, the order made on that date providing:

“2.

By 4pm on 24 January 2023 the Defendant will file and serve a report from one psychiatrist addressing:

(a)

the impact of his conditions on the conduct which constitutes the admitted breaches of the injunction order and on his ability to comply with that order; and

(b)

any particular steps that can be taken in relation to the adjourned committal hearing to assist with his anxiety.

3.

If the Claimant proposes to rely on expert evidence in response, by 4pm on 21 February 2023 the Claimant will file and serve a report from a psychiatrist addressing the issues identified in para 2 above.”

The reports of Dr Adelman (20th January 2023) and Dr Wilson (20th February 2023) were filed in compliance with that order. Both gave evidence before me in relation to the issue identified at paragraph 2(a).

As to paragraph 2(b), the court took regular breaks during the hearing to reduce any anxiety that Mr Beck might be experiencing.

The applicable principles were succinctly summarised in the case of Melanie Olu-Williams v Oscar Olu-Williams [2018] EWHC 2464 (Fam), 2018 WL 06113042 at paragraph 33 (Williams J):

“a)

The contempt which has to be established lies in the disobedience to the order.

b)

To have penal consequences, an order needs to be clear on its face as to precisely what it means and precisely what it prohibits or requires to be done. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing. It is not possible to imply terms into an injunction. The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law.

c)

Committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at [56], Ravnsborg v. Sweden (1994), Series A no.283-B);

d)

The burden of proof lies at all times on the applicant. The presumption of innocence applies (Article 6(2) ECHR)

e)

Contempt of court involves a contumelious that is to say a deliberate, disobedience to the order. If it be the case that the accused cannot comply with order then he is not in contempt of court. It is not enough to suspect recalcitrance. It is for the applicant to establish that it was within the power of the defendant to do what the order required. It is not for the defendant to establish that it was not within his power to do it. That burden remains on the applicant throughout but it does not require the applicant to adduce evidence of a particular means of compliance which was available to the accused provided the applicant can satisfy the judge so that he is sure that compliance was possible.

f)

Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. The judge must determine whether he is sure that the defendant has not done what he was required to do and, if he has not, whether it was within his power to do it. Could he do it? Was he able to do it? These are questions of fact.

g)

It is necessary that there be a clear finding to the criminal standard of proof of what it is that the alleged contemnor has done that he should not have done, or in this case what it is that he has failed to do when he had the ability to do it. The judge must determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it.

h)

If the judge finds the defendant guilty the judgment must set out plainly and clearly (a) the judge's finding of what it is that the defendant has failed to do and (b) the judge's finding that he had the ability to do it.”

(my emphasis).

The requirement that the party applying to commit for contempt has to establish that it was within the power of the party in breach to comply was the formulation used by the Court of Appeal in Re LW v CH-W and Others [2010] EWCA Civ 1253 (see the judgment of Mumby LJ at paragraph 34). This is the logical consequence of the fact that whilst an intention to commit a breach is not necessary, the act constituting the breach must be deliberate. Contempt is accordingly predicated on a breach involving an avoidable act or omission on the part of the party in breach.

In Sectorguard v Dienne [2009] EWHC 2693 (Ch) at [32]: Briggs J (as he then was) commented:

“32.

[…] The mental element required of a contemnor is not that he either intends to breach or knows that he is breaching the court order or undertaking, but only that he intended the act or omission in question, and knew the facts which made it a breach of the order: see Adam Phones v. Goldschmidt [1999] 4 All ER 486 at 492j to 494j.

33.

Nonetheless, even a mental element of that modest quality assumes that the alleged contemnor had some choice whether to commit the relevant act or omission. An omission to do that which is in truth impossible involves no choice at all. Failure to comply with an order to do something, where the doing of it is impossible, may therefore be a breach of the order, but not, in my judgment, a contempt of court.”

There is no reason in principle why a psychiatric disorder should not qualify as an impediment to compliance with a court order if in fact it made compliance impossible. This was common ground between the parties.

All of the psychiatrists who have assessed Mr Beck, at various points in the proceedings, have reached the view that he meets the diagnostic criteria for i) hoarding disorder and ii) schizotypal disorder. There is also the suggestion of a degree of intellectual impairment which might be due either to an underlying borderline learning difficulty or a long-term consequence of his schizotypal disorder.

The definitions of these psychiatric conditions were set out in Dr Adelman’s report as follows:

“Hoarding disorder – ICD-11 code 6B241 ‘Hoarding disorder is characterised by accumulation of possessions that results in living spaces becoming cluttered to the point that their use or safety is compromised. Accumulation occurs due to both repetitive urges or behaviours related to amassing items and difficulty discarding possessions due to a perceived need to save items and distress associated with discarding them. If living areas are uncluttered this is only due to the intervention of third parties (e.g., family members, cleaners, authorities). Amassment may be passive (e.g. accumulation of incoming flyers or mail) or active (e.g. excessive acquisition of free, purchased, or stolen items). The symptoms result in significant distress or significant impairment in personal, family, social, educational, occupational or other important areas of functioning

Schizotypal disorder – ICD-11 code 6A223 ‘Schizotypal disorder is characterised by an enduring pattern (i.e. characteristic of the person’s functioning over a period of at least several years) of eccentricities in behaviour, appearance and speech, accompanied by cognitive and perceptual distortions, unusual beliefs, and discomfort with— and often reduced capacity for— interpersonal relationships. Symptoms may include constricted or inappropriate affect and anhedonia. Paranoid ideas, ideas of reference, or other psychotic symptoms, including hallucinations in any modality, may occur, but are not of sufficient intensity or duration to meet the diagnostic requirements of schizophrenia, schizoaffective disorder, or delusional disorder. The symptoms cause distress or impairment in personal, family, social, educational, occupational or other important areas of functioning.”

Dr Adelman also concluded that there was an adjustment disorder triggered by the protracted legal proceedings, which he defined in the following terms:

“Adjustment disorder is a maladaptive reaction to an identifiable psychosocial stressor or multiple stressors (e.g. divorce, illness or disability, socio-economic problems, conflicts at home or work) that usually emerges within a month of the stressor. The disorder is characterised by preoccupation with the stressor or its consequences, including excessive worry, recurrent and distressing thoughts about the stressor, or constant rumination about its implications, as well as by failure to adapt to the stressor that causes significant impairment in personal, family, social, educational, occupational or other important areas of functioning. The symptoms are not better explained by another mental disorder (e.g., Mood Disorder, another Disorder Specifically Associated with Stress) and typically resolve within 6 months, unless the stressor persists for a longer duration.”

His opinion as to the impact of these conditions on Mr Beck’s ability to comply with the Order was:

“In my opinion, LB’s diagnoses of schizotypal disorder, hoarding disorder and low intellectual functioning are interrelated. His hoarding behaviour is almost certainly secondary to the other conditions. These conditions are chronic (long-standing). In some diagnostic systems, schizotypal disorder is considered to be a disorder of personality and endures throughout adult life. From the available history, it would seem that his hoarding began more than twenty years ago, when he was evicted from the property at Westfield Sole Farm.

The history suggests that LB’s mental disorders have indeed had a profound effect on his life in terms of employment, personal relationships and lifestyle. Although LB does not perceive these to be problems, others do in terms of the management of his land and the living conditions of his dogs. It would also seem that he has until recently, neglected his physical health

In my opinion, both schizotypal disorder and hoarding disorder would have severely impacted on LB’s ability to comply with the final injunction order. I would go as far as to say that without assistance, it would have been near impossible for him to comply.”

Dr Wilson reached a different conclusion which he explained in his report as follows:

“30.

In my opinion, Mr Beck did not lack mental capacity to comply with the enforcement notice or injunction during either of the relevant periods.

31.Having now reviewed the full bundle of correspondence, witness statements and the pre sentence report, in my opinion Mr Beck has, over a prolonged period, made extensive efforts to persuade the relevant authorities that he was complying when in fact he was not. He has latterly hardened his position where he has stated both to myself and a probation officer, amongst others, that he has no intention of complying with the various orders. When I assessed him in June, he was partially complying with some requests.

32.There is nothing to indicate that there has been a significant change in Mr Beck's mental status or cognitive functioning over the past few years aside from an increase in stress related symptoms in the past few months.

33.

In my opinion, Mr Beck's hoarding disorder is not in itself causative of any impaired capacity. His hoarding, in my opinion, is not so severe or disabling that it impairs every aspect of his life and living space. Indeed, it is evident that it does not. It does not impinge upon the egress from the property nor his living space within the portacabin which are related to his line of work and daily comfort.

34.I have previously advised on cases where the level of hoarding is much more severe and disabling where it is literally impossible to enter the individual’s home. In Mr Beck's case, whilst hoarding is a feature of his overall presentation, it is not causative of a failure to comply with the terms of the enforcement notice or injunction or an inability to clear the site. Additionally, his alleged breaches of the enforcement notice relate to other occupational and income generating activities that do not specifically relate to excessive retention of items and hoarding psychopathology, but unlawful use of land.

35.

Similarly with Mr Beck's diagnosis of schizotypal disorder, it is my view that this in itself is not causative of impaired capacity either now or previously. Schizotypal disorder is best viewed as a description of an odd, isolative personality with an unusual worldview, but it does not in itself impair Mr Beck's mental capacity to comply with the various orders.”

He concluded:

“39.

In my opinion, Mr Beck will likely never comply with the enforcement notice or injunction and the prospect of any near term compliance is as close to negligible as can be contemplated. The manner in which he lives without adherence to social norms and rules is axiomatic to his worldview. He does not believe he is accountable to the relevant authorities and believes he should be allowed to live how he wishes, regardless of the impact on others. It was also notable during my interview that Mr Beck’s friends supported this viewpoint and were dismissive of the various planning and public health issues or indeed the ruling of the Court.”

Both psychiatrists maintained their respective positions in the course of their oral evidence.

Dr Wilson accepted that there was evidence of an adjustment disorder brought on by recent stressful events but again not of sufficient intensity to prevent compliance with the order. It was a maladaptive response to life events which would not have been present in 2021.

He emphasised that there were many examples of Mr Beck modifying his environment for his benefit. He was selective about what he hoards and relinquishes. He traded items and brought them onto the land for his business purposes. He may have had a strong attachment to some items for sentimental reasons but that was not true of much of what he had brought onto his land, which he only wanted to retain where he attributed a money value to it. Mr Beck’s witness statement made it clear that he had been able to part with items in compliance with the injunction. His living environment was not typical of someone with a pronounced hoarding disorder. The presentation was entirely unlike the disabling conditions of hoarding disorder he was familiar with. He agreed that Mr Beck did express some paranoid ideas but said that these were common and nonspecific. His rigid thinking was partly attributable to his Schizotypal disorder but also a feature of stress. In other words it was multifactorial and, Dr Wilson, considered, relatively mild.

Dr Adelman had not seen Mr Beck’s witness statement until the day before the hearing nor had he discussed it with Mr Beck. He said it did not alter his opinion because it was not uncommon to have good intentions and partially comply but not see them through because of the psychiatric conditions from which it was agreed Mr Beck suffered. He accepted that the issue was essentially one of degree but thought that the illness identified was a good deal more severe than had been described by Mr. Wilson. The conditions often fluctuated and got worse under stress to the extent that, recently, Mr Beck’s mental health had deteriorated; his thoughts had become close to delusional exhibiting a very different view of the world. The fact that his reason for noncompliance might be that the Order contradicted his way of life was itself an aspect of his illness.

On Mr Beck’s behalf the court was invited to accept the evidence of Dr Adelman to the effect that it would be ‘near impossible’ for him to comply without assistance, and to find that any breach of the injunction in those circumstances did not amount to a contempt of court and that it would be appropriate to consider whether the injunction should be stayed, varied, or discharged.

The Claimant submitted that Dr Wilson’s evidence should be preferred. In any event, it was argued, there was nothing in Dr Adelman’s report that suggested that Mr Beck was suffering from any condition which interfered with his ability to comply with:

It followed that there was no evidential basis to conclude that Mr Beck was incapable of complying with those elements of the Order. The matters addressed in Dr Adelman’s report only went to the issue of compliance with the mandatory elements of the Order, that is to say the clearing of the waste and removal of existing hardstanding.

I prefer the evidence of Dr Wilson on the central issue before me and I am satisfied to the criminal standard that Mr Beck was able to comply with the court order and was not prevented from doing so by his psychiatric conditions. I reach that conclusion for the following reasons:

For these reasons I find that Mr Beck was in contempt of court as a result of his admitted breaches of the Order.

I told the parties at the hearing that I had reached that conclusion with this written judgment to follow. Mr Beck’s financial position is opaque. There is some indication that he may own other properties and have a relatively large sum of money available to him. His means and assets should be disclosed in a further witness statement. I have adjourned the committal hearing to a future date in accordance with the directions discussed with the parties at the hearing. I am in effect deferring imposing a sanction. I do so with the intention, amongst other things, that this will allow Mr Beck to take steps to purge his contempt. The local authority has acted in the public interest with the ultimate purpose of bringing to an end those activities that should not be carried out on the land and restoring it to a condition appropriate to its situation in an area of outstanding natural beauty. As I indicated to Mr Beck, if by the time of the next hearing it is clear that he is complying with the order, as he appeared to be willing to do in March 2022, that will count significantly in his favour and inform the penalty that the court imposes.