- Court of Appeal dismisses appeal against finding of contempt for failing to comply with injunction in planning case (Re Wildin v FODDC)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute resolution analysis: In a long running planning enforcement case, Mr Wildin in 2013 constructed a large sports building in the garden of his residential property in breach of planning control. The council served a planning enforcement notice in 2014 requiring the demolition of building which was unsuccessfully appealed. Following Mr Wildin’s failure to comply with the enforcement notice the council in 2018 secured an injunction for the demolition of the building and other works. Mr Wildin failed to comply with the injunction and was found by a judge of the High Court in June 2021 to be in contempt and sentenced to six weeks’ imprisonment suspended for 12 months on the condition he did certain works within 18 weeks. Mr Wildin appealed the decision principally on the grounds that the council had not proved to the criminal standard that he could comply with the terms of the injunctive order. In particular, whether he could afford to carry out the works. In dismissing the appeal, the Court of Appeal found that it was for the council to prove all elements of the alleged contempt to the criminal standard. However, in an issue where all relevant facts are known to the alleged contemnor, and not to the council, the judge in deciding whether the council has achieved that proof will have regard to all the evidence, in particular that adduced by the alleged contemnor. Where that evidence is to the effect ‘I cannot comply with the order because I cannot afford to do so’, the court will expect full disclosure to that effect before giving the claim any weight. Written by Brendon Lee, senior associate at HCR Hewitsons LLP.
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