Wokingham Borough Council v Dunn & Anor

On an appeal against sentence for contempt of a planning injunction, the court must assess the circumstances as they stand at the appeal hearing. Belated full compliance does not remove the gravity of deliberate and flagrant breaches, particularly where the contemnors initially denied responsibility. It may nevertheless make immediate custody excessive when responsibility is accepted, an apology is made and relevant personal circumstances are established.

A substantial financial penalty may then be substituted. The penalty may reflect the financial benefit obtained through permitting the continuing breach.

The Borough Council obtained a planning injunction requiring the appellants to clear and restore land and to prevent further unauthorised occupation of caravans on it. On 6 March 2014, a Deputy High Court Judge committed each appellant to prison for four months for admitted non-compliance.

The appellants initially sought to avoid responsibility by relying on changes in ownership and an alleged arrangement with a company controlling the caravan occupation. By the adjourned appeal hearing, they accepted that each had sufficient control to secure compliance. The injunction had then been fully complied with, and they apologised. The only pursued ground was that immediate imprisonment was excessive and that a suspended sentence or financial penalty should have been imposed.

1. Appeal allowed. The court set aside the order committing the three appellants to four months’ immediate imprisonment and substituted a fine of £20,000, for which they were jointly and severally liable.

2. The Deputy High Court Judge had been fully entitled, on the material then before him, to impose immediate custody. The breaches were flagrant. The appellants had failed to comply with the injunction, sought to evade responsibility, offered no apology or remorse, and gave no adequate assurance that the continuing unauthorised caravan occupation would end.

3. The position at the appeal hearing was materially different. The land had been cleared, top-soiled and reseeded, and the occupation requirement had been satisfied. The first appellant accepted that, despite transferring the freehold, he retained sufficient practical control to be responsible for compliance. The second and third appellants accepted that they could secure the company’s compliance and had in fact done so without needing to enforce legal rights against it.

4. Those acknowledgments of responsibility, the apology, the medical evidence, and the eventual full compliance made custody excessive in the circumstances then existing. A significant financial penalty remained necessary because the breaches were deliberate and serious. The court inferred that the second and third appellants had received payments totalling £1,600 per month for ten months by permitting conduct inconsistent with the injunction.

5. The appellants were also ordered to pay the costs of the appeal on the indemnity basis.

• Court of Appeal (Civil Division): Allowed the appeal against sentence and substituted a joint and several fine of £20,000 for the custodial sentences: [2014] EWCA Civ 633.

• High Court: On 6 March 2014, a Deputy High Court Judge committed each appellant to prison for four months for contempt in failing to comply with a planning injunction.