James Oliver Tamplin v Elwynd Properties Ltd & Anor

In contempt proceedings arising from undertakings to carry out remedial works, a party cannot rely on a statutory consent requirement unless the promised works fall within the statutory definition of restricted works. Repair, clearance, drainage, preparation and reseeding works did not constitute resurfacing works under section 38 of the Commons Act 2006. Even if consent had been required, the promisor would have needed to make prompt and proper efforts to obtain it. Where performance depends on a third party, the promisor must establish that despite best endeavours the co-operation was unavailable; ordinarily, the proper course is to seek variation of the undertaking. Civil contempt sentencing may include imprisonment suspended on conditions requiring compliance with related obligations serving the same protective purpose.

Mr James Tamplin brought proceedings concerning his registered common-grazing rights over land owned by Elwynd Properties Ltd and occupied or controlled by Mr David Terrence Jones. The proceedings were compromised by a consent order and undertakings given by Mr Jones personally and as the company’s director. The undertakings prohibited interference with grazing and required immediate works by 18 May 2022 and substantive remedial works by 31 October 2022.

Following a contested hearing, the Cardiff County Court found breaches proved to the criminal standard and, on 18 March 2024, imposed three consecutive 14-day terms of imprisonment, suspended on compliance with the order and undertakings. Mr Jones appealed against both the findings and sentence. The central issues were whether the alleged statutory consent requirement under section 38 of the Commons Act 2006, and the Further Expert’s supervisory role, excused non-compliance, and whether the sentences were principled.

1. Appeal dismissed. The findings of contempt were upheld. There was ample evidence that Mr Jones repeatedly drove or moved Mr Tamplin’s sheep, including video evidence and unchallenged witness evidence. The Immediate Works were admittedly not completed by the specified date, and the alleged inability to remove one item could not answer the wider failure to perform the undertaking.
2. Section 38 of the Commons Act 2006 did not provide a defence. The first three Immediate Works—removing stones and hazardous materials, clearing sheep holes, and filling the ditch and reinstating the pipe—were not restricted works. Track reinstatement could only arguably fall within section 38, but it did not involve laying the specified materials, or alternatively was merely repair of an existing surface and therefore within the statutory exception. The Substantive Works likewise involved reinstatement, clearance, seedbed creation, topsoil and reseeding, none of which fell within restricted works.
3. Even if consent had been necessary, it would not have excused non-compliance without prompt application and proper efforts to obtain it. Mr Jones applied late and to the wrong authority. A person undertaking work requiring third-party co-operation may avoid breach, or punishment, if best endeavours genuinely failed, but the evidential foundation must be properly established. The promisor should engage with the other party and apply to vary the undertaking if compliance has become literally impossible. Mr Jones had not shown that he promptly sought the Further Expert’s involvement.
4. The sentences were within the court’s discretion. The repeated, deliberate and immediate sheep-driving breaches crossed the custody threshold. In civil contempt proceedings, imprisonment may be suspended on conditions requiring compliance with related obligations where those conditions encourage performance of the order’s common purpose. The same approach was proper for the Immediate and Substantive Works.

• Court of Appeal (Civil Division): The appeal from the Cardiff County Court’s committal order was dismissed. The findings of contempt and the suspended aggregate sentence of 42 days’ imprisonment were upheld.
• Cardiff County Court: His Honour Judge Harrison found breaches of the undertakings proved to the criminal standard in judgments dated 17 October 2023 and 18 March 2024. He imposed three consecutive 14-day terms, suspended on compliance with the consent order and undertakings.