Cheshire East Borough Council v Maloney & Ors

A contempt allegation for breach of an injunction must be proved beyond reasonable doubt. The claimant must establish notice of an unambiguous order, a prohibited act or required omission, intention to perform the act or make the omission, and knowledge of the facts constituting the breach. The breach must be deliberate, although an intention to flout the order is unnecessary.

A planning injunction under section 187B of the Town and Country Planning Act 1990 requires an independent, structured and proportionate assessment. The court must consider the defendant’s and family’s hardship, including health, education, alternative accommodation and Convention rights, alongside the public interest in enforcing planning control and the seriousness and history of the breach.

The Council sought findings of contempt against Mr Michael Maloney for alleged breaches of interim injunctions restraining development, the deposit of materials, the laying of hardcore and the siting of caravans on land at Broadoak Lane, Mobberley.

The Council also sought a continuing planning injunction for five years while enforcement proceedings and an appeal were pursued. The central issues were whether the alleged breaches were proved to the criminal standard and, if so, whether the continuing injunction should permit eight caravans present when the first injunction was made or all thirteen caravans subsequently brought onto the land.

1. Contempt. The burden rested on the Council and the standard was proof beyond reasonable doubt. The court applied the established requirements that Mr Maloney had notice of an unambiguous order, committed or permitted acts prohibited by it, intended the relevant acts or omissions, and knew the facts making them breaches. Lack of an intention to flout the order did not prevent contempt, although it could affect penalty. Informal notice could suffice where Mr Maloney knew the order’s terms and effect and the absence of formal service caused no prejudice or unfairness; the court could dispense with formal service under CPR r81.8(1)(b).
2. The court found allegations 1, 2, 3, 4, 6, 7, 8, 9, 13 and 14 proved. Mr Maloney had knowingly allowed works to continue, encouraged or authorised additional caravans, and permitted further deposits of material and hardcore after the injunctions. Allegations 15 and 16 were not proved: the sheds were not shown on the limited evidence to involve a breach of planning control, and the replacement caravan was not regarded as an additional caravan being sited.
3. Planning injunction. Under section 187B of the Town and Country Planning Act 1990, the court was not required to re-determine the planning merits. It nevertheless had to assess for itself the hardship and Convention consequences of coercive relief, including the availability of alternative sites, health, education, children’s interests, environmental harm, planning history, the seriousness and flagrancy of the breach, and the authority’s decision to seek relief.
4. The discretion had to be exercised compatibly with Convention rights. An injunction had to be appropriate and necessary for the public objective and must not impose an excessive burden on the affected individuals. The interests of children were a primary consideration, but were not determinative. The Council’s failure to provide sufficient traveller pitches and the Article 8 and equality implications were material, but did not outweigh the strong public interest in obedience to court orders or justify allowing a party to obtain forensic advantage from deliberate disobedience.
5. The proportionate position was to preserve the pre-existing position and limit occupation to the eight caravans present when the first injunction was made. The court took no action concerning the two sheds and invited the parties to agree the detailed terms of the continuing injunction, with unresolved matters to be determined at a further hearing.

The judgment records interim injunctions granted by Farby J on 13 August 2020 and by Cockerill J on 1 September 2020. No appellate decision is stated.