Cheshire East Borough Council v Maloney

For contempt arising from breach of a planning injunction, the court must be satisfied beyond reasonable doubt that the defendant knew of an unambiguous order, intentionally performed or permitted the prohibited act, and knew the facts making that conduct a breach. Formal service is not indispensable where the defendant knew the order’s terms and suffered no prejudice or unfairness.

Under section 187B of the Town and Country Planning Act 1990, the court must not simply revisit the planning merits. It must assess hardship, the public interest in enforcing planning control, and the proportionality of the proposed restraint, including its effect on family life and children. Disobedience cannot ordinarily be deployed to secure a forensic advantage by changing the factual status quo after an injunction.

The council obtained interim planning injunctions restraining development and the siting of caravans on agricultural land at Broadoak Lane, Mobberley. The defendant was subsequently charged with multiple breaches of those orders.

In the appended judgment, the court found ten allegations of contempt proved and determined the terms of a continuing injunction. The present judgment concerned sentence. The central issues were the appropriate custodial penalty, whether imprisonment should be suspended, and the conditions governing suspension.

1. Contempt proved. The defendant’s breaches were established to the criminal standard. The relevant requirements were notice of an unambiguous order, an act or omission contrary to it, intention to perform the act or omit the required act, knowledge of the facts constituting the breach, and deliberate rather than inadvertent conduct. An intention to flout the order was unnecessary, although intention remained relevant to sentence. Informal notification could suffice where the defendant knew the order’s terms and the absence of formal service caused no prejudice or unfairness.
2. Planning injunction. Section 187B of the Town and Country Planning Act 1990 gives the court a broad discretion. The court must accept the planning status as determined within the planning process rather than decide the planning merits afresh. It must nevertheless assess hardship, alternative accommodation, environmental harm, the planning history, the authority’s decision, and the urgency of enforcement. Relief must be necessary, appropriate and proportionate, having regard to Article 8 rights and the interests of children.
3. Status quo and children. The children’s best interests were a primary consideration but were not determinative. The court was entitled to reject the later occupation of five additional caravans because permitting the defendant to benefit from deliberate disobedience would undermine the authority of court orders. Limiting the injunction to the eight caravans present when the first order was served was proportionate.
4. Sentence. The repeated, calculated breaches and lack of remorse made imprisonment the only adequate sentence. An eight-month term was imposed for each contempt, concurrently. The committal was suspended because the defendant was already imprisoned for an unrelated matter, section 225 of the Sentencing Act 2020 prevented the sentence from being backdated to a speculative release date, and suspension provided a strong incentive to comply with the continuing injunction. The suspension was conditional on obedience for two years.
5. The claimant was awarded its injunction costs, with an interim payment of £25,000, and publication directions were made under the applicable committal practice direction.

The judgment followed an earlier decision finding the defendant guilty of ten contempts arising from breaches of planning injunctions. The present judgment determined sentence and confirmed the continuing injunction.