Maidstone Borough Council v Langley Frank Beck & Ors

a) Stop using the Land for residential purposes;

b) Stop using the Land for stationing of caravans;

c) Stop using the Land for the storage of motor vehicles and motor-vehicle parts;

d) Stop using the Land for stationing of containers and portable buildings;

e) Stop using the Land for the storage of building materials;

f) Stop using the Land for the storage of waste, highway equipment and domestic items;

g) Remove from the Land all caravans, motor vehicles, motor-vehicle parts, containers, portable buildings, building materials, planting equipment, waste, highways equipment and domestic items; and

h) Demolish and permanently remove from the Land the hard surfacing shown in the appropriate position outlined in blue on plan B and resultant rubble, waste, material and debris from the land.

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).

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.

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”

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.

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.”

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.

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.

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.

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.”

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…

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...

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.”

a) On or around 15 July 2021 breach of:

i.

The prohibition against spreading waste on the Land (only observed on 15 July) and:

ii.

The prohibition against residential use of the Land by allowing Mr Foot to reside on the Land; and

b) On or around 30 November 2021 breach of:

i.

The prohibition against laying hardstanding on the Land;

ii.

The prohibition against residing on the Land and allowing others (Mr Foot) to reside on the Land;

iii.

The mandatory requirement to remove existing hardstanding; and

iv.

The mandatory requirement to remove motor vehicles, portacabins, waste etc.

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

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

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

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.”

“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 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.

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.”

“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.”

“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.”

“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.”

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.

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.

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.”

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.”

The prohibition against the spreading of waste over the Land;

The prohibition against allowing Mr Foot to live on the Land;

The prohibition against Mr Beck living on the Land; or

The prohibition against the laying of further hardstanding on the Land.

The suggestion that Mr Beck was powerless to comply with the order is completely at odds with his own evidence in this application as set out in his witness statement of March 2022. This evidence describes the steps he had taken, and intended to take, to comply with the Order, which included clearing the Land. There is nothing to suggest that his psychiatric conditions were so severe as to deprive him, in effect, of normal human agency in this respect; indeed quite the reverse. Although Dr Adelman pointed to the possibility that Mr Beck was promising to do more than he was capable of, that ignores the fact that he had, to an extent, already complied with the Order. He had done that which, it was said, would be “impossible” for him to do. As I have already observed, Dr Adelman’s report was not informed by the witness statement, of which he was unaware until shortly before the hearing.

A considerable amount of the material on site, as evidenced in photographs, was simply the accumulation of waste and other items which arose from the various economic activities that Mr Beck has carried out on the Land. It was inherent in these activities that material would be brought onto and then removed from site. There is no suggestion in Mr Beck’s evidence that he had formed some attachment to material of this nature that amounted to a psychological impediment to parting with it. His witness statement was to the opposite effect. His main reason for wishing to retain some items was that they had value which he would be able to realise in due course.

The conditions from which he suffers do not provide a plausible explanation for his failure to comply with the prohibitions in the Order which do not involve hoarding and appear to be rational choices made in connection with his use of the Land to earn a living or on which to live.

Mr Beck may think the world is ranged against him and be resentful of the action the council has taken. Those feelings may be amplified by the two underlying conditions which affect his mental health and the more recent adjustment disorder. But this is not the same as being powerless to comply with the Order. This is the distinction which Dr Wilson drew in describing Mr Beck’s motivation and approach; his opinion fits closely with the other evidence in the case including Mr Beck’s own evidence.