Bruce v Wychavon District Council

Factual and Procedural Background

At all material times, the Appellant was the owner of a large former airfield site in the West Midlands ("the Land"). In December 2014, the Appellee ("the Council") issued two enforcement notices requiring cessation of mixed use of the Land, removal of unauthorised machinery and waste, and reinstatement to grassland. The Appellant failed to comply, prompting the Council to seek an injunction restraining non-agricultural use and unauthorised development of the Land, granted by Soole J in March 2016.

The Appellant repeatedly breached the injunction, resulting in three prior findings of contempt and custodial sentences: a suspended 12-month sentence in November 2016, a 28-day immediate sentence in August 2017, and activation of the suspended 12-month sentence plus 28 days in October 2018 (with early release on promise of compliance).

The Council alleged further breaches (the fourth contempt application) involving tipping, storage, and burning of waste on the Land between May 2021 and November 2022. The fourth committal trial was initially set for July 2023 but moved to 9 August 2023. The Appellant did not attend the hearing, nor provide evidence or instruct alternative counsel, despite prior directions and opportunities to do so.

On 9 August 2023, the judge found the Appellant in contempt on four allegations but adjourned sentencing to 21 September 2023, allowing the Appellant to apply to set aside or vary the order with full medical evidence. The Appellant applied within the stipulated time, submitting further medical evidence. At the 21 September hearing, the judge declined to set aside the 9 August order and sentenced the Appellant to 12 months imprisonment for contempt.

Legal Issues Presented

1. Whether the judge erred in refusing to set aside the order made on 9 August 2023, considering the Appellant’s medical evidence and absence at the hearing.
2. Whether the 12-month custodial sentence imposed for contempt of court was manifestly excessive, particularly in light of the statutory framework governing breaches of planning enforcement notices.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that his absence on 9 August 2023 was justified due to acute medical conditions, supported by subsequent medical evidence including diagnoses of suspected angina and raised blood pressure.
• He argued that the judge should have set aside the 9 August order and allowed a retrial of the contempt allegations.
• Regarding sentencing, the Appellant submitted that since the original breach arose from planning enforcement notices punishable by fine under the Town and Country Planning Act 1990, a custodial sentence was manifestly excessive.

Appellee's Arguments

• The Council maintained that the medical evidence was insufficient to justify the Appellant’s non-attendance or to set aside the order.
• It was emphasised that the Appellant had repeatedly breached the injunction despite prior sanctions, including imprisonment and suspended sentences.
• The Council argued that the custodial sentence was appropriate given the history, seriousness of the breaches, and the need to punish and deter contempt of court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the procedural history and the factual background, noting the Appellant’s long-standing breaches of injunctions and repeated contempts. It acknowledged the medical evidence submitted but found it insufficient to justify the Appellant’s absence on 9 August 2023, as it lacked an expert medical opinion explicitly linking the condition to incapacity to attend court, contrary to the guidance in Levy v Ellis-Carr.

The court emphasized that the Appellant had been given clear directions on the necessity of providing full medical evidence and had failed to comply. The absence of any alternative legal representation or application for adjournment further undermined the Appellant’s position. The court also noted the Appellant’s failure to provide a signed witness statement addressing the contempt allegations, which was necessary to demonstrate a reasonable prospect of success if the order were set aside.

Regarding the merits of the contempt allegations, the court found that one allegation was admitted and the others were supported by credible evidence, including photographs and witness testimony. The Appellant’s explanations were found lacking credibility, especially given his history of dishonesty and non-compliance.

On sentencing, the court applied the principles from Liverpool Victoria Insurance Co. Ltd v Zafar, concluding that the custodial threshold was clearly met given the repeated breaches and prior sentences. The 12-month imprisonment was deemed the minimum necessary to punish the Appellant and deter similar conduct. The court rejected the submission that the statutory fine regime for breaches of planning enforcement notices under the TCPA should limit sentencing here, explaining that contempt of court for breach of injunctions carries a distinct and more severe penalty regime, justified by the history and seriousness of the conduct.

The court further held that suspension of the sentence was inappropriate due to the lack of mitigation, absence of rehabilitation prospects, and the public risk posed by the Appellant’s conduct.

Holding and Implications

The court DISMISSED the appeal.

The judge’s refusal to set aside the 9 August 2023 order was upheld on grounds of insufficient medical evidence and absence of a reasonable prospect of success in defending the contempt allegations. The 12-month custodial sentence imposed for contempt was affirmed as neither wrong in principle nor manifestly excessive.

The decision directly affects the parties by confirming the Appellant’s imprisonment for contempt and maintains the enforcement of injunctions in similar circumstances. No new legal precedent was established beyond the application of established principles to the facts of this case.