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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Doncaster Metropolitan Borough Council  EWCA Civ 16 (16 January 2014)
Cite as:  EWCA Civ 16
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Seymour QC (sitting as a judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
SIR STANLEY BURNTON
| NIGEL SMITH
|- and -
|DONCASTER METROPOLITAN BOROUGH COUNCIL
Juan Lopez (instructed by Sharpe Pritchard, London Agents for Legal Services, Doncaster MBC) for the Respondent
Hearing date: 18 December 2013
Crown Copyright ©
Sir Stanley Burnton :
(a) from using specified land for residential development, including the occupation of caravans or mobile homes for residential purposes;
(b) from using any part of the Farm for siting or storage of trailers or portacabins;
(c) from using any part of the Farm for office or business purposes; and
(d) from undertaking any development on the Farm without a grant of planning consent.
a) to cease the residential use of the Farm, which included the removal of all caravans and mobile homes, vehicles and residential paraphernalia;
b) to cease the office and business use of the Farm, which included the removal of all portacabins and trailers associated with the office and business uses; and
c) to remove all hardcore and access roads laid on the Farm.
"30. I accept, as Mr Paget submits, that the purpose of a committal sentence is two-fold, both coercive and penal. …
31. … there was a blatant and effectively complete failure to comply with Judge Seymour's order within the appropriate time and … there remains a continuing failure to comply with it, albeit one which does not require the presence of Smith to put the outstanding matters right. …
32. As the authorities to which I have made reference make clear, in a case such as this, involving a long history of flagrant breaches of the planning law, for the courts to do other than impose a custodial sentence would diminish respect for Court orders, undermine the authority of the Court and subvert planning law.
33. My starting point is 12 months' imprisonment. Bearing in mind the dual purpose to which I have made reference and that the coercive purpose has, albeit belatedly, enjoyed some success, it seems to me that in the exercise of any discretion the proper sentence to require Smith to serve is one of nine months' imprisonment. That is the order that I make."
"In all the circumstances, on the material which I have seen, the coercive purpose of the sentence of imprisonment imposed by Sweeney J remains to be satisfied. To the extent that there has been partial satisfaction, much of which is due to the action taken by the Council, this cannot justify the Defendant's release at this time. To release him on such a basis would in my view undermine the basis of the order for his committal. In relation to the penal purpose I note of course that the Defendant has not yet served a quarter of the sentence of imprisonment imposed. The fact is that as is clear from the judgement of 13 September, this Defendant admitted multiple contents. He was found to have been openly defiant of the injunction order of the court. Having regard to Mid-Bedfordshire District Council v Brown  1 WLR 1460, it is noteworthy that in this case a contempt spend a significant period, during which the court repeatedly advised the defendant of the need for his compliance with the court's orders. Throughout he had had the ability to comply and has chosen not to. There has been a continuing series of wilful breaches of the order and each breach has been deliberate and committed in full knowledge of the breach. The disregard for lawful planning enforcement, having regard to Sweeney J's judgement, is particularly high. There is no evidence before the court of the Defendant having taken any productive steps whatsoever to secure full compliance. There is therefore a high degree of deliberate flouting of the court's order. As Sweeney J expressed it, the Defendant has "cocked a snook" at the court and cannot attract any sympathy."
"41. Consequently, as it seems to me, the question which I have to decide is simply this. On the basis – which is the only basis upon which I can proceed – that the order of Sweeney J was entirely appropriate, has there been anything since which ought properly in justice and fairness to Mr Smith to persuade me that Mr Smith has purged his contempt? There is, in fact, absolutely nothing. …"
Judge Seymour therefore dismissed the application.
The grounds of appeal
a) The judge was wrong to refuse the application in circumstances where no coercive element of the original sentence remained.
b) The judge was wrong to conclude that the punitive element continues for the whole of the original sentence.
"56. In the case of continuing breach, out of fairness to the contemnor, the court may see fit to indicate (a) what portion of the sentence should be served in any event as punishment for past breaches and (b) what portion of the sentence the court might consider remitting in the event of prompt and full compliance thereafter. Any such indication would be persuasive, but not binding upon a future court."
For present purposes, the crucial words in this paragraph are "in the event of prompt and full compliance" after the imposition of the sentence. In the present case, far from such compliance, there was continuing breach. The order of the Court was flouted even after the imposition of the sentence by Sweeney J. Until the appellant ceased to be in possession of the Farm, the hardcore remained in breach of planning control and in breach of the injunction.
Lord Justice Pitchford