Wildin v Forest of Dean District Council

The Court of Appeal dismissed the appellant's challenge to HHJ Jarman QC's committal decision and sentence for contempt of court arising from non‑compliance with an injunction made under section 187B of the Town and Country Planning Act 1990. The contempt findings related only to breaches of paragraphs 3 and 4 of the injunction (failure to carry out specified preparatory works and to soft‑strip and decommission services) and not to the wider demolition obligation. The court held that the respondent authority did not need to prove to the criminal standard an inability to comply in advance; an evidential burden lies on the alleged contemnor to raise the defence of inability, after which the applicant must satisfy the court beyond reasonable doubt that the contemnor could comply with the specific obligation alleged. The injunction’s requirements were sufficiently clear and severable, the appellant had not made full disclosure of means, and the judge was entitled to impose a suspended custodial sentence with detailed conditions to secure compliance.

Background and procedural posture:

The Council brought an application under section 187B of the Town and Country Planning Act 1990 for an injunction to secure compliance with an enforcement notice relating to a large unauthorised sports/leisure building. After the High Court granted the injunction in 2018 (HHJ Jarman QC: [2018] EWHC 2811 (QB)), the appellant failed to comply. The Council applied in 2021 for committal for contempt in respect of breaches of the injunction. After a hearing HHJ Jarman found contempt proved in respect of parts of the injunction (paragraphs 3 and 4) and passed a six‑week custodial sentence suspended for 12 months on condition of compliance with a specified schedule of works; other alleged contempts were dismissed. The appellant appealed to the Court of Appeal.

Nature of the claim / relief sought:

• Primary remedy sought by the Council at first instance: an injunction to secure compliance with a planning enforcement notice (s187B 1990 Act).
• Remedy sought in the 2021 proceedings: committal for contempt and, if contempt established, appropriate penalty or coercive measures to secure compliance.

Issues framed by the court on appeal:

• Whether the Council was required to plead and prove that the appellant was able to comply with the injunction (and, if so, whether that was done).
• Whether the judge was entitled to find that the appellant could comply with paragraphs 3 and 4 without proof of precise costs or that demolition of the whole building was possible.
• Whether paragraphs 3 and 4 of the injunction were sufficiently precise and whether they were severable from the rest of the order.
• Whether the sentence (a suspended custodial sentence with detailed conditions and a suspension period) was lawful and appropriate.

Court’s reasoning and disposition:

The Court of Appeal upheld the judge's approach and findings. On the evidential question, the court explained the proper allocation of burdens: when a contemnor asserts inability (for example inability to pay), there is an evidential burden on the contemnor to adduce some evidence supporting that defence; the applicant then must satisfy the court beyond reasonable doubt that the contemnor could comply with the alleged obligation. The judge was entitled to rely on the appellant's prior disclosures, his affidavit (which the parties used at the hearing), the judge's own factual findings at the injunction hearing and the appellant's inadequate disclosure to draw a secure inference that the appellant could afford the more limited works found to be in contempt. The court rejected arguments that the terms were too imprecise or that the obligations were inseverable: the injunction set out discrete obligations, and paragraphs 3 and 4 were sufficiently clear in fact; the judge was entitled to require precise steps in the suspended sentence to avoid future disputes. The sentencing exercise was within the judge's discretion; suspending custody on conditions that extend beyond the period for completing the steps was permissible to maintain leverage for future compliance. The appeal was dismissed.

Other important findings: The court considered admissibility and use of the appellant’s affidavit (declined to give oral evidence) and concluded the affidavit could be relied upon in the circumstances; it emphasised the public interest in enforcing planning control and that committal is exceptional but properly available where disclosure is inadequate and the court is sure the contemnor could have complied.

Appeal dismissed. The Court of Appeal upheld the High Court’s findings of contempt in respect of paragraphs 3 and 4 of the injunction and the suspended custodial sentence. The court held that (i) an alleged contemnor who asserts inability to comply bears an evidential burden to adduce some support for that defence, after which the applicant must prove beyond reasonable doubt the contemnor could comply with the specific obligation; (ii) the obligations in the injunction were sufficiently clear and severable so as to support findings of contempt in respect of parts of the order; (iii) the judge was entitled to draw adverse inferences from the appellant’s incomplete disclosure and to impose a suspended custodial sentence with detailed conditional requirements to secure compliance.

Appeal from the High Court (Queen's Bench Division), HHJ Jarman QC: [2018] EWHC 2811 (QB). Permission to appeal to the Court of Appeal had earlier been refused on the papers by Irwin LJ on 5 November 2019. The present appeal was heard in the Court of Appeal, resulting in dismissal: [2021] EWCA Civ 1610.