South Oxfordshire District Council v Darren Smith & Anor

For contempt by breach of an injunction, the court must prove to the criminal standard that the defendant had notice of an unambiguous order, deliberately performed the prohibited act, and knew the facts making the act a breach. Actual knowledge is not required for breach, although it may affect penalty.

A judicial order may incorporate a statutory definition. An injunction prohibiting development under section 55 of the Town and Country Planning Act 1990 can therefore prohibit a material change of use, including occupation of land as a residential caravan site.

Where prohibited acts have occurred, the contemnor may remain in breach for penalty purposes until the situation is remedied. Sentencing requires assessment of culpability, harm and mitigation, with appropriate credit for admissions and consideration of whether custody should be suspended.

The Council applied to commit the fifth and sixth defendants for contempt of an injunction granted under section 187B of the Town and Country Planning Act 1990. The injunction prohibited bringing caravans onto the land without written permission, carrying out specified works in breach of planning control, and undertaking development without planning permission.

The defendants admitted bringing caravans onto the land, laying hardstanding and permitting works, but argued that they did not understand the injunction, that occupation of the caravans was not prohibited, and that any breaches were historical rather than continuing. The court also had to determine the appropriate custodial penalty, credit for admissions and suspension of committal.

1. Contempt established. The court found beyond reasonable doubt that both defendants knew of the injunction, knew the relevant prohibitions and deliberately breached them. Notice, rather than actual knowledge, was the relevant threshold. Their literacy difficulties and alleged lack of understanding did not displace the evidence, which included service of the order, correspondence through their planning agent and direct explanations by the Council.
2. Construction of the injunction. A judicial order is construed as a coherent legal instrument in its factual and procedural context. Paragraph 4(e), read with section 55 of the Town and Country Planning Act 1990, clearly prohibited development, including a material change of use. The order’s object was to prevent conversion of the land into the caravan site being used by the defendants. Occupation was therefore a breach, not merely the prior placing of caravans or carrying out of works.
3. Findings of breach. Both defendants breached paragraph 2 by bringing caravans onto the land and permitting the seventh defendant to do so. They breached paragraph 4(b) by laying or permitting the laying of hardstanding. They breached paragraph 4(e) by changing the use of the land to a caravan site and occupying it. The first static caravan, for which the Council had agreed written permission, did not constitute a breach.
4. Continuing position. Applying the reasoning in Solicitor General v Jones, a failure to perform a specified act may constitute a single breach rather than a series of new breaches. Nevertheless, after the prohibited acts had occurred, the defendants remained in breach for penalty purposes because the caravans, works and unlawful use continued. They had not purged their contempt.
5. Sentence. Culpability was high and harm was medium, including harm to the administration of justice, the planning process and the environment. An eight-month sentence was reduced to six months to reflect admissions, taking the approach most favourable to the defendants amid conflicting authority. The committal was suspended for 18 months on condition that no further prohibited items were brought onto the land. The defendants were ordered to pay costs of £23,500 jointly and severally.