Court of Appeal rejects appeal over prison sentence imposed in waste case

The Court of Appeal (Civil Division) has refused to lift a prison sentence imposed for contempt on a man who repeatedly failed to clear a site of waste and other unauthorised material.

Lord Justice Coulson said in his judgment the 12 months imprisonment for contempt imposed on the appellant by the Birmingham District Registry was “neither wrong in principle nor manifestly excessive”.

The appellant owns a large former airfield site and in December 2014 Wychavon District Council issued two enforcement notices that required him to cease operating and storing plant, and the “importing, storing and burning [of] waste materials”.

He was also required to remove unauthorised agricultural machinery, hard standings and bunds, and to reinstate grassland.

Coulson LJ said the appellant did not comply and the council then secured an injunction restraining him from using the land except for agriculture.

“Subsequently, [the appellant] repeatedly and persistently failed to comply with the terms of the injunction,” Coulson LJ said.

Wychavon said the appellant “comprehensively failed” to keep promises about clearing the land and further waste was dumped there.

When the appellant was due in court in August 2023, his doctor wrote to say he had been unwell with chest pains and difficult breathing and had been taken by ambulance to hospital.

She was unsure of the diagnosis but “would appreciate you consider this with regards to tomorrow's proceedings”. The hearing proceeded in his absence.

Coulson LJ noted: “The letter and the email were the totality of the medical evidence before the judge at the trial on 9 August. The judge concluded that the medical evidence did not support an adjournment of the hearing.”

The appellant’s first ground of appeal was that he demonstrated a good reason for his absence on 9 August, and if the contempt allegations were re-opened, he had a reasonable prospect of successfully refuting them.

His second ground was that the sentence was manifestly excessive since the injunction arose originally out of two planning enforcement notices, the sanction for breach of which is a fine.

Coulson LJ said: “Although these cases will always turn on their facts, I am aware that, all too often, parties seek to justify their non-attendance at court by reference to the sort of ‘tick box’ sick note used here.”

He said the sick note referred to the appellant’s unfitness for work, not whether he could attend a court hearing - even when held remotely.

Coulson J said he was in “no doubt that the judge was entitled to conclude on 21 September that the medical evidence did not provide a good reason for the appellant’s non-attendance on 9 August 2023”.

Nor did the appellant have any reasonable prospect of success at a reopened trial.

There was one admitted breach of the injunction, involving approximately 75 metric tonnes of waste, “years after the promise made by [the appellant]…that he would comply with the injunction”.

Other allegations were therefore of only marginal relevance and “I consider that there was no realistic prospect of a contested trial altering the result set out in the order of 9 August, or the sanction which the judge was minded to impose on 21 September”

It would have been .”wholly inappropriate to suspend any sentence imposed on [the appellant]”, Coulson LJ said because by the time of both the earlier second and third committals, an immediate term of custody, without suspension, had been found to be justified. The fourth committal, for still further breaches, “meant that only an immediate term of custody was appropriate”.

None of the factors mitigating in favour of a suspended sentence was present.

He concluded: “[The appellant’s] activities on this site, unlawfully importing, storing, and burning waste, present a clear risk/danger to the public and to the environment.

"That is what the council are protecting. There is a woeful history of compliance with court orders…appropriate punishment could only have been achieved by immediate custody.

Lord Justice Snowden and Lord Justice Newey both agreed with the main judgment.

Mark Smulian