Man-Shed Miscalculated
Wildin v Forest of Dean DC [2021] EWCA Civ 1610
In our September and October articles, we looked at the process of getting injunctions and the guidance offered by the courts in recent decisions involving Hackney LBC, National Highways and Havering BC (and others).
This month, we look at the latest decision in the Wildin case, which involves the appeal of an order for committal after an injunction and which was decided earlier this month.
Fast overtaking Mr Fidler as planning enforcement’s cause celebre, readers will recall that Mr Wildin is an accountant who, in 2013, began to construct a large sports building in the rear garden of his two adjoining houses, first having excavated the site so that he could claim it was single storey and therefore (he thought) PD. The building would ultimately contain a sports hall, gym, squash court, cinema, two ten-pin bowling lanes, a casino, bar and soft play.
The council served an enforcement notice in 2014, before construction was complete, and the notice was largely upheld by an inspector in 2015. Mr Wildin completed and furnished the building anyway and took no action to comply with the enforcement notice. His appeal against the inspector’s decision was rejected by the High Court in 2015. Expiry of the compliance period came and went and, in 2018, the council obtained an injunction requiring compliance with the notice and also requiring completion of certain “stepping stones” to compliance, such as signing a contract with a contractor, decommissioning services and soft stripping the interior. The judge who granted the injunction even made a site visit. Not one to keep it low key, Mr Wildin ensured that people were playing squash, bowling and using the cinema at the time of the site visit!
The injunction was appealed but the appeal was rejected. Appeal judge Irwin LJ said that Mr Wildin was “the owner of his own misfortune”.
Mr Wildin still did not comply and, in 2021, the council obtained an order of committal for contempt of court for failure to comply with the injunction. The committal was for some, but not all, of the injunction failures (largely the “stepping stone” items); the committal judge accepted that there was insufficient evidence that Mr Wildin had sufficient money to comply with the injunction in full, particularly as regards full demolition. Mr Wildin was sentenced to 6 weeks in prison. But the sentence was suspended for 12 months on condition that he completed the stepping stone steps within a new timetable.
Mr Wildin did not comply. Instead, he appealed the sentence. With a hearing date for the appeal set, Mr Wildin started on the soft-strip, removing a few pictures, a mirror and some doors. And so we come to the current iteration of this case.
Mr Wildin appealed his sentence on several grounds. He suggested that, as this was a mandatory injunction (requiring positive action rather than prohibiting action), the council had to allege and prove that Mr Wildin could afford to carry out the works. He also suggested that the requirements of the injunction were not severable and that, unless he failed to do all of them, he could not be guilty of contempt; so having started on the soft-strip, he could not be entirely contemptuous of the court’s order. Finally, he said that the judge was wrong to find that he was able to afford to do some of the work because the only information on that was in an affidavit which Mr Wildin had submitted but not used at the injunction hearing. There were other grounds of appeal.
The first of these points is the point of general importance here. As mentioned, the committal judge had accepted that there was no evidence that Mr Wildin was able to afford to complete some items on the injunction order (ie full demolition). The contempt application was dismissed on those items and, at appeal, the council did not argue that this was wrong. But the Court of Appeal refused to endorse that approach. It pointed out that the council could never prove Mr Wildin’s wealth to a “beyond reasonable doubt” standard since the facts were in Mr Wildin’s exclusive knowledge. It was, said the Court of Appeal, for Mr Wildin to prove that he could not afford to comply. Ability to afford the work was a defence to contempt, not an element of the contempt.
The inference was that the committal judge could perhaps have granted the committal in respect of all the items of the failures to comply with the injunction. Since the point was not appealed, the Court of Appeal could not overturn the decision. Mr Wildin was, said the court “extremely fortunate… the outcome on the issue of his wealth was very favourable to [Mr Wildin], perhaps wrongly so”. But it meant that Mr Wildin’s argument, that he could not afford to comply with the stepping stone items either, was given short shrift.
The argument about the council needing to prove non-compliance with all injunction items was given equally short shrift. The court held that the injunction terms were severable. If Mr Wildin complied with some, but not all, of the terms, he could still be in contempt in relation to the remainder.
The decision, then, is helpful in providing very clear precedent against some of the obstacles which defendants seek to put in the way of committal. The road is also now, presumably, open to the council to seek Mr Wildin’s committal on the remainder of the injunction. It would be nice to think that the prospect of some prison time would be enough to encourage his compliance but, given the history of the case, that may be wishful thinking.
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