Graham Michael Wildin v Forest of Dean District Council

The Court of Appeal dismissed the appellant's challenge to the activation of a suspended committal order for contempt. The judge below had a discretion whether to activate the suspended sentence under the Contempt of Court Act 1981 (section 14) and Civil Procedure Rules rule 81.29(1); that discretion was exercised after findings that the appellant had continued to disobey an injunction obtained under section 187B of the Town and Country Planning Act 1990 and had, despite opportunities, carried out little of the work required by the injunction.

The court applied established appellate standards for multifactorial assessments: interference is appropriate only for an error of principle, taking into account immaterial factors or omitting material ones, or a decision plainly outside the range of reasonably open outcomes (see Liverpool Victoria v Zafar and Villiers v Villiers). Applying those principles, the Court of Appeal held there was no such error: the judge had considered relevant factors (culpability, ability to comply, personal circumstances, and proportionality) and his findings were supported by the evidence.

The appellant owned property on Meendhurst Road where he had constructed a large sports and leisure building without planning permission. An enforcement notice was served in 2014; an appeal to the planning inspector failed and the appellant did not comply. The local planning authority obtained an injunction under section 187B of the Town and Country Planning Act 1990 requiring specified decommissioning and soft-stripping works. The appellant failed to comply.

At first instance HH Judge Jarman KC found contempt and, in June 2021, imposed a six-week custodial sentence suspended for 12 months, conditional on completion of specified works within 18 weeks. This court dismissed the appellant's prior appeal on 4 November 2021 ([2021] EWCA Civ 1610) but extended the compliance period. In June 2022 the authority applied to activate the suspended sentence for continued non-compliance. On 12 August 2022 the judge activated the six-week sentence, finding the appellant had not permanently decommissioned services, had not completed the majority of the soft-stripping, and had the means and opportunity to do more; the judge found reason to conclude the appellant intended to continue disobedience and that only custodial punishment would be sufficient.

The appellant appealed to the Court of Appeal. The issues framed were (i) whether the judge erred in law or principle in deciding to activate the suspended sentence; (ii) whether the judge failed to take into account matters put forward by the appellant (steps taken towards compliance, obstacles to compliance, alleged notices from neighbours); and (iii) whether the decision was outside the range of reasonable outcomes.

The Court of Appeal summarised the legal framework for activating suspended committal orders (Villiers v Villiers) and the limits on appellate interference in multifactorial penalty assessments (Liverpool Victoria v Zafar). It concluded the judge had correctly exercised his discretion, had taken into account material factors and the appellant's circumstances, and had reached a conclusion supported by the evidence. The appellant's late assertions (including a recent sale of the site) did not undermine the factual findings or the exercise of discretion. The court therefore dismissed the appeal. The judgment emphasised that custodial committal is a last resort but may be necessary where an offender persists in disobedience and has the means to comply.

Appeal dismissed. The Court of Appeal held that the judge below had a discretion to activate the suspended committal order and had properly exercised that discretion. The judge's adverse factual findings were supported by the evidence, he considered relevant mitigating and aggravating factors, and his decision was within the range of reasonably open outcomes under the established appellate standard for multifactorial assessments.

Appeal from the High Court (HH Judge Jarman KC sitting as a High Court Judge). The appellant had earlier appealed to this court and that appeal was dismissed on 4 November 2021: [2021] EWCA Civ 1610. This appeal to the Court of Appeal (Civil Division) is reported as [2023] EWCA Civ 366 and was dismissed.