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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 >> Maldon District Council v Hammond [2005] EWCA Civ 1001 (07 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1001.html Cite as: [2005] EWCA Civ 1001

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE CURTIS)

		Royal Courts of Justice Strand London, WC2
		7th July 2005

1. LORD JUSTICE PILL: This is an appeal against an order of Curtis J made on 31st January 2005, whereby the judge found that Mr Michael Roy Hammond was in contempt of court by failing to comply with an injunction dated 27th June 2003 by: (1) failing to remove from the land two mobile homes in breach of paragraph 1 of the injunction; (2) failing to remove two motor cars and one lorry body in breach of paragraph 2 of the injunction; (3) occupying two mobile homes along with his son, Mark Hammond, in breach of paragraph 3 of the injunction. The judge ordered that the appellant should stand committed to Her Majesty's Prison Pentonville for a period of two months from the date of his apprehension, but that the warrant of committal remain in the Court Office and that the execution of it be suspended for six months from the date of the order on condition that within the said six months the appellant complies with the entirety of the injunction of 27th June 2003.
2. By an application which we believe to be dated 11th February 2005, Mr Hammond appealed against that order of Curtis J. It seems to us that an extension of time is not required, but there is apparently a document on the court file which might indicate that the application was made late. We say out of an abundance of caution that if an extension of time is required then it is granted.
3. The land referred to is at 8A Mill Road, Mayland, near Chelmsford in Essex. It has been the subject of litigation for many years involving planning and enforcement notice inquiries, and subsequent challenges and appeals in the courts.
4. On 14th October 2003 Buckley J granted to Maldon District Council the injunction to which Curtis J referred in the order to which I have referred. The injunction required: (1) the appellant to remove from the land any mobile home; (2) remove from the land any motor vehicle whatsoever; (3) cease to use the land for the purposes of human habitation, save as permitted by the General Permitted Development Order 1995.
5. Permission to appeal was sought by the appellant. Permission was granted on one point concerning the construction of section 173(11) of the Town and Country Planning Act 1990. The appeal was, however, dismissed in this court and the stay which had been imposed on the operation of the injunction was removed in this court.
6. The council agreed with the appellant's legal representatives that he should be given until 30th September 2004 to satisfy all the requirements in the injunction. He had not complied with some of those by 1st November 2004 and the application for committal was then made to Curtis J.
7. The appellant gave evidence before Curtis J. The judge accepted that in certain respects efforts had been made by the appellant to comply with some of the requirements of the order. He had removed all the vehicles in connection with his motor car business from the site, and there was evidence from the planning officer that the site was much tidier than it had previously been. The judge stated that substantial credit should be allowed to the appellant for complying with some of the order. In considering his general credibility, the judge stated he had regard to that action. However, the judge concluded at paragraph 9:

"... I have found him to be in wilful and contumacious breach of the injunction on him, which I am quite certain he knew perfectly well he had to obey in every respect."

8. The judge stated that the appellant had "tried to get round" the orders of the court:

"... his conduct in failing to comply with the injunction in three particular respects, particularly the mobile home and the caravan, is that it is a serious, deliberate and contumacious disobedience to an order of the court and warrants a term of imprisonment. I fix the period at one of two months. In giving him the credit that I have mentioned, I propose to suspend the order of imprisonment for the period of six months. If within that time he complies with the order in every respect, all well and good. If not, the law will take its course."

9. The judge referred to the judgment of Buckley J and to that of the Court of Appeal. Curtis J stated that he had regard to the following matters:

"First, this is a discretionary remedy. Second, the burden of proof lies on the council. Third, there is a balancing exercise required here to consider (a) the environmental damage that may or may not be proved and (b) the hardship that may result to Mr Hammond since he lives in the mobile home and his son lives next door in the other caravan. Allied to that are his human rights which I have firmly in mind. He complains that he has not been offered any housing by the applicants [that is the council], who are his local housing authority. That has been considered by both courts before. There has been no application to the council on Mr Hammond's own evidence in cross-examination. I concur with the findings of fact made by Buckley J between 71 and 75. Had there been any genuine wish to do with the applicant's alternative housing, I am satisfied that any genuine person, and Mr Hammond in particular, would have taken some steps, which he admits not taking, to inspect and choose other accommodation."

10. The judge went on to say at paragraph 6:

"It is time for some plain speaking. Mr Hammond, in my judgment, is not only untruthful, but he is wily. He twists and turns as the situation demands. That is my judgment of him. It is supported, in my view, by his own evidence. The excuse that he thought that it was perfectly 'all right and justified' to live in the mobile home is not credible. It is precisely the same excuse that he ran in front of Buckley J with different factual traits (see paragraph 84 of Buckley J's judgment). He has said on oath in front of me that his present activities are devoted to restoring this land to agricultural use. That was his excuse to Buckley J. With a slightly different matrix he sought to persuade Buckley J that it was in order that he could carry on his car repair business on the site in question, but it has now become agriculture. He has no training in agriculture; he has not enquired whether the land, which is frequently water-logged, is suitable for the purpose for which he wishes to use it. I disbelieve the whole idea."

11. On behalf of the appellant Mr Ground QC submits that the period of suspension should be extended by this court. He accepts, when the point is put to him, that there is little criticism he can properly make of the approach of Curtis J on the information which was before Curtis J. He submits that subsequent events are such that this court should review the sentence imposed and should increase the period of suspension. It is submitted that Curtis J made an error in his construction of the judgment of Buckley J in relation to housing being available. Buckley J stated at paragraph 75, having considered the appellant's circumstances:

"I do not find that there would be great hardship on Mr Hammond. The only one really is that he would have to find alternative accommodation, and that I have no reason to suppose would be insuperable given time."

12. Mr Ground submits that, both in that respect and in respect of where the mobile home might go, the judge has misconstrued the judgment of Buckley J. In relation to the mobile home, Buckley J stated at paragraph 121:

"But unless one ties the vehicle repairing to the mobile home, it is clear to me that there will not be any particular difficulty in re-siting the mobile home on an alternative site. I do accept it would be difficult to do that and take all the cars and shells of cars that have accumulated along this site, but I do not regard that I am afraid as a particular hardship."

13. On behalf of the council it is conceded that there is no other site available in which the appellant can reside in his mobile home as a mobile home, and to that extent the optimistic approach which Buckley J adopted has not been borne out by events. However, that is not the case in relation to the question of accommodation for the appellant if he is separated from his mobile home. An undertaking is given on behalf of the council by Mr Robb that upon his leaving the site, immediate temporary accommodation will be available to the appellant. At paragraph 18 of the skeleton argument of the council:

"The Council has now accepted that it owes a duty to Mr Hammond under the Housing Act 1996 and has placed him at the top of its waiting list for permanent accommodation. Once he vacates the site, Mr Hammond would be provided with immediate temporary accommodation."

Mr Robb has confirmed that departure within the period of suspension of the order, which expires on the 31st of this month (that is about three weeks away), would enable and would require that undertaking to come into effect.

14. Curtis J did not deal in terms with what might happen to the physical apparatus, that is the mobile home itself. It is clear from his judgment that Curtis J regarded the appellant's position as being one of determination to remain on the present land in the mobile home, and the manoeuvrings described by the judge were the appellant's attempts to do that.
15. A further long statement has recently been submitted to this court by the appellant. What he now seeks to do is to use the land as a chicken farm. The use suggested before Curtis J was a different agricultural use. The determination to remain, if possible, on the land in his mobile home is the intention of the appellant.
16. We have considered the long further statement with a view to deciding, first, whether the subsequent events can have any bearing upon the rightness of the decision of Curtis J and, secondly, with a view to considering whether in the circumstances this court should hold that the sentence was too severe by way of the length of suspension and should increase it.
17. Before expressing conclusions on that point, we mention the statement of Mr Ground that a High Court application is ready in draft. I have to say that if the present submissions were to be made on the appellant's behalf, then the appropriate place to make them was in my judgment the High Court. While no liberty to apply was expressly conferred by Curtis J, it is in my judgment to be implied when a committal order such as this is in operation.
18. The appellant has had legal aid for the present applications throughout. We were told by Mr Ground, although he cannot give the exact date, that some time ago authority was given for an application to be made to the High Court. It has not been made yet, Mr Ground tells us, because of the perceived need to obtain the evidence of a planning consultant to make the necessary points, and only recently have the services of a planning consultant been authorised out of public funds by the Legal Services Commission.
19. In Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460, this court considered the competing factors to be taken into account on a claim for a final injunction in circumstances such as these. The court stated (and I refer to the headnote) that:

"... where an interim injunction had been breached, proper account was to be taken of the vital role of the court in upholding the principle that court orders were to be obeyed; that the practical effect of suspending the injunction was to allow the defendants to change the use of the land and retain the benefit of occupation of the land with caravans for residential use in defiance of a court order properly served on them and correctly explained to them; that in the circumstances there was a real danger that the suspension of the injunction would be perceived as condoning the breach, which would diminish respect for court orders, undermine the authority of the court and subvert the rule of law; that those overarching public interest considerations far outweighed the factors favouring suspension of the injunction; and that, accordingly it was appropriate to discharge the order suspending the injunction pending the determination of the planning application ..."

20. In my judgment those principles apply in the present situation. Curtis J found serious and persistent breaches of the injunction made by Buckley J. He had the opportunity to hear the appellant and consider his evidence, and I have referred to his conclusions upon them.
21. The further point made in Mid Bedfordshire relevant to the present situation is as to the remedy which someone in Mr Hammond's position should seek. Mummery LJ stated (at paragraph 25):

"The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal."

22. That principle, in my judgment, applies in the present situation. The appropriate course, if for any reason an extension of the period of suspension was to be sought, was to make early application to the High Court. That is so even though liberty to apply had not expressly been stated. Even at this stage there could be an application to vary the injunction of Buckley J, although I am not encouraging that. A difficult task would be faced by the appellant. Application could be made (which is the one made to this court) that the period of suspension should be extended. In saying that, I am not encouraging hopes that, upon the findings of Curtis J, it would be. But the court would consider the up-to-date position.
23. I express the view that it remains the position that the appellant's intention is to seek permission to remain on the land in his mobile home. I have referred to the undertaking which the council have given, so that, as far as a roof after his head is concerned and the obvious hardship resulting from the absence of such a roof, his needs are to be met. The point has been made on behalf of the council that they are under no duty to provide a site for the mobile home, either for use as a residence or otherwise, and any statutory status under which the appellant could claim relief as a gypsy is not admitted; and the case has not been argued on his behalf on that basis.
24. It may be a problem for the appellant to know what to do with the object itself, the mobile home. But he was granted period of six months in which to take steps, including removing it from the land, and that is a problem which by now he should have confronted. I see no error in the judgment of Curtis J which would entitle this court to interfere. On his findings the question of refusal of alternative accommodation did not arise because the appellant had not troubled himself to request that accommodation, such was his determination to remain on the land. On the material before him, the judge was fully entitled to make the order he did and the period of suspension (which, for the reasons he stated, he granted) was an entirely appropriate one.
25. In my judgment, both on substantive and on procedural grounds, this court should not increase that period of suspension and allow the appeal to that extent. The period of suspension still has almost three weeks to run. While I am not encouraging the appellant to seek relief in the High Court rather than to comply with the injunction and take advantage of the council's offer, sufficient time remain s for him to take that course if so advised. For the reasons I have given, I would dismiss this appeal.
26. LORD JUSTICE CLARKE: I agree.
27. MR JUSTICE RIMER: I also agree.

ORDER: Appeal dismissed; public funding assessment of the appellant's costs.

(Order not part of approved judgment)