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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Wychavon District Council v Bruce [2016] EW Misc B39 (CC) (21 December 2016) URL: http://www.bailii.org/ew/cases/Misc/2016/B39.html Cite as: [2016] EW Misc B39 (CC)

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IN THE COUNTY COURT AT BIRMINGHAM

		The Priory Courts 33 Bull Street Birmingham B4 6DS
		21st December 2016

JUDGE RAWLINGS:

1. On 4^th of November 2016 I found that Mr Bruce had breached the Order which was made by Mr. Justice Soole on 14^th of March 2016 ("The Order") in certain respects to which I will turn to shortly. I now have to deal with the question of what sanction should be applied to Mr Bruce, for those breaches..
2. In summary, the breaches of the Order that I found to have occurred on the last occasion were as follows: firstly, that Mr Bruce had retained on the index site plant and machinery which was connected to his plant sale and hire business which he was required by the Order to remove. The particular items were a road sweeper, refrigeration units, a container mover, a crane, a crusher and a trammel. Secondly, that he had failed to move a bund which was adjacent to the entrance gate and, thirdly, that the other bund features on the index site had been flattened, but the material from them had been spread around the index site, whereas the material from the bunds should have, in accordance with Mr. Justice Soole's Order, been removed from the index site.
3. The sanction I have to impose should apply to each of those breaches and the objectives that I have to have in mind when imposing sanction upon Mr. Bruce are, firstly, to punish the breach, secondly, to securing future compliance with the Order and, thirdly, if appropriate, rehabilitation of Mr Bruce.
4. The options are to impose a term of imprisonment of up to two-years on Mr. Bruce, which may be suspended or may have immediate effect and a fine of an unlimited amount and I may impose a prison term as well as a fine.
5. One of the most important factors that I need to consider is whether or not the breaches were intentional or whether there was something less than intention on the part of Mr. Bruce.
6. So far as leaving the items of plant, machinery and equipment which I have identified on the index site and claiming that they were for agricultural use is concerned, in my judgement, that was a deliberate breach of the injunction by Mr. Bruce. I found that they were not for agricultural use and I do not consider that Mr. Bruce genuinely thought that those items were being used for agricultural purposes or could reasonably be used for agricultural purposes on the index site.
7. So far as removal of the bund at the entrance was concerned, Mr. Bruce's position in relation to that was that he considered that because the bund was there, on his evidence before he purchased the site, it was only necessary for him to reduce the size of the bund to that which it had been when he had originally purchased the site. In that respect I consider that Mr. Bruce was at least reckless as to whether or not he breached the Order. The Order, in my view, was clear, it applied to all of the bunds that were on the index site and required them all to be removed. The fact that Mr. Bruce has now produced evidence that the bund by the entrance gate, or a part of it was present on the site when he purchased the index site, does not in any way give him a good excuse, in my view, as to why he should not fully observe the Order by removing that bund.
8. Mr Bruce's behaviour in relation to the bund by the entrance gate was, in my view, part of a pattern of behaviour on the part of Mr. Bruce by which it appears to me that he takes every opportunity to try to find reasons - whether good or bad - as to why he need not comply fully with the Order. That was true in relation to the items of plant, machinery and equipment that he left behind on the index site and which he claimed, implausibly, at least in some respects, were for agricultural purposes. That was also true, in my judgment, in relation to the bund at the entrance gate where, notwithstanding, in my judgement, that it was clear on the face of the Order that it should be fully removed, he decided for himself that because part of the bund was there before he purchased the index site, he need not remove that bund (or at least that part of it that was there when he purchased the index site). There was no solid basis for such a decision based on the terms of the Order and therefore Mr Bruce was at least reckless as to whether he was breaching the Order by failing to remove part of the bund by the entrance gate.
9. As for the third breach, which is spreading material from the bunds around the index site, Mr Bruce did this on the basis, he said, that the Order did not require the material from the bunds to be removed from the site, again, I consider that that was a reckless position for Mr. Bruce to take. The council wrote to Mr Bruce, ten days after Mr. Justice Soole's Order, on 24^th of March 2016, making the council's position clear that all of the material must be removed from the site. Mr. Bruce nonetheless took it upon himself, on his own opinion, to take the position that spreading the material around the site was sufficient.
10. I should make it clear that it was said by Mr Smythe that his recollection and that of the council representatives present at the hearing before Mr Justice Soole was that Mr. Justice Soole had made clear during the hearing that spreading material round the site would not be sufficient removal of the bunds to comply with the Order. There was an application to me for an adjournment of today's hearing to allow a transcript to be obtained of the hearing before Mr Justice Soole to see whether that was the case or not. I refused that application for an adjournment principally upon the basis that, whether or not Mr Justice Soole indicated that spreading material from the bunds around the site would not be full compliance with the order, Mr. Bruce was at least reckless as to whether spreading the material around the site was compliant with the Order. I do not rely, in deciding what sanction to impose upon Mr Bruce, upon the council's assertion that Mr. Justice Soole had made it clear at the hearing that that would not be compliance.
11. So that is the position on the question of culpability. As to aggravating features, a number of those were put to me by Mr Smythe. The first of those goes to the question of whether or not Mr. Bruce has purged his contempt, which is an important matter. There is a dispute as to whether or not Mr Bruce has fully purged his contempt by ensuring that the breaches of the Order which I found to have occurred at the hearing on 4 November 2016 are not continuing. It is accepted by the council that the one remaining bund by the entrance gate has been removed and I believe the council accepts that the content of that bund have been removed from the index site.
12. There is a dispute as to whether or not material from the remaining bunds, which had been spread around the index site, has been removed or not. Mr. Bruce has produced invoices that he says shows the material from the bunds has been removed from the index site and that he has spent around £50,000 in arranging for that to be done. The council say that based upon their observations of the index site they do not accept that the material has been removed.
13. As to whether or not the items that I found were not on the index site for agricultural purposes (the road sweeper, the refrigeration units, the container remover, the crane, the crusher and the trammel) have been removed from the index site, it appears that Mr. Bruce has been somewhat slow in removing the items and where we finally appear to have arrived at is that yesterday morning the very large container remover was still on the index site, but Mr. Bruce says that arrangements are in the process of being made for that container remover to be removed from the site. The council accept that the other items have been removed.
14. As to the question of whether or not Mr. Bruce has properly purged his contempt, I proceed on the basis that Mr Bruce could and should have moved more quickly, at least to remove the container mover from the index site and he should have produced better evidence that he has fully purged his contempt given the importance of that matter to the sanction that I will impose. In deciding only what sanction to impose, I do so on the basis that Mr Bruce has purged his contempt that is not to say that I am fully satisfied that he has purged his contempt.
15. There is a history of non-compliance with planning. Part of the evidence of that came out during the trial when Mr Bruce accepted that at least three agricultural buildings have been placed on site for which planning permission was not at the time obtained. That, to my mind, provides another example of Mr Bruce's disregard for planning requirements.
16. Mr Smythe also referred to a track record of Mr. Bruce not complying with environmental requirements. A prison sentence has apparently been imposed in 2007 for depositing contaminated soil and in 2011 for breach of a planning enforcement notice.
17. So far as those are concerned, I consider them to be of some relevance in showing that Mr. Bruce does have a history of not obeying either planning or environmental requirements. That has some relevance to the nature of the sanction that I should impose, but it is not a significant factor.
18. There is the fact, in my view, that at trial Mr. Bruce gave evidence which he knew to be untrue that certain items of plant and machinery which remained on the index site were there for agricultural use. I rejected that assertion and found that they amounted to a breach of the order. The false assertion by Mr Bruce that they were there for agricultural purposes is an aggravating factor, in my view, on the basis that it shows Mr. Bruce was prepared to put forward evidence to the court as to agricultural use which he knew was not true.
19. More importantly, I found that Mr. Bruce had invented a "sham sale" of the index site to a BVI company in order to support his application to discharge the Order. In order to provide support for that story, Mr Bruce produced Jonathan Gilder as a witness who claimed that he was the beneficial owner of the BVI company that had purchased the index site and that it was a genuine sale. I found that the evidence of Mr Gilder was untrue. Mr Bruce therefore, on my findings, conspired with Mr Gilder to try to mislead the court into believing that the index site had been sold in order that Mr Bruce could have the Order discharged. That is a serious matter which I take into account in deciding what sanction to impose.
20. It was put to be my Mr Smythe that these breaches of the Order were carried out by Mr Bruce for commercial gain. Mr Rees Phillips says that Mr Bruce made no commercial gain. Whilst it may be that as a result of my findings on 4 November 2016 and as a result of Mr Bruce purging his contempt Mr Bruce has not in fact made a commercial gain, in my judgement, there was an attempted commercial gain here which was to avoid the cost of full compliance with the Order in terms of shifting very large pieces of equipment from the index site and storing them elsewhere and more particularly the cost of removing large amounts of waste from the bunds which had been spread around the index site.
21. In terms of mitigation of the position, it is true that - and the council do not dispute this - a very, very large number of commercial vehicles, plant and machinery was on the site prior to Mr. Justice Soole making his Order and it is said that something over 400 vehicles were removed from the index site and what was left which I have found to be a breach of the Order was one vehicle and a very small number of items of plant and machinery.
22. Taking all those matters into account it does appear to me that this is a matter that crosses the threshold for a custodial sentence, but, having found that, I have to ask myself whether there are grounds on which that sentence should be suspended. I find principally on the grounds that continued compliance with the Order is of significant public interest, that there are grounds here on which the sentence should be suspended, but on very strict grounds that I will come to and which I wish to discuss with the parties to ensure, not only that Mr Bruce's contempt has been fully and comprehensively purged, but that the terms of the Order are complied with for a significant period of time into the future as well.
23. The council have referred in evidence to breaches of the Order which they say are still occurring in terms of the storage of commercial vehicles on the index site. Whilst I will not taken those assertions into account in deciding what the appropriate level of sanction should be, it is relevant in deciding what the appropriate terms of the suspension of the sentence should be and I do consider that this is an appropriate case where a substantial fine should be paid by Mr. Bruce. Therefore the sanctions that I intend to impose are both a suspended prison sentence and a substantial fine.
24. In relation to the fine, having considered the cost of removing material from the site, which is in itself substantial and which, in my judgement, Mr Bruce sought to avoid by not removing material from the bunds from the index site, I consider that the appropriate level of fine in this case is £30,000.
25. I find that the term of imprisonment to which Mr. Bruce should be sentenced is twelve-months, but suspended for a period of two-years conditional upon compliance with the terms of Mr. Justice Soole's Order.
26. I also think that it is important to give the council the right to go on to the index site to inspect the index site in order to ensure that there is full compliance with Mr. Justice Soole's Order in respect both of the purging of Mr Bruce's contempt and compliance with the Order more generally. Mr. Bruce places himself at risk of having the suspended period of imprisonment activated in the event that he retains vehicles, plant or machinery on the index site and is not able to persuade a court in the future that they are genuinely for agricultural purposes. In that respect I would suggest it is time for Mr Bruce to stop playing games by suggesting that vehicles, plant and machinery are being used on the index site for agricultural purposes when this is clearly not the case, if he engages in that again, then he puts himself at substantial risk of having the period of 12 months imprisonment which I have suspended, triggered.
27. I will also provide, as the council requested, that Mr. Bruce will not have the ability to sell or lease the index site until he has fully purged his contempt, either on the basis that the council agree that his contempt has been fully purged or on the basis that the court determines, on application by Mr. Bruce to the court that he has fully purged his contempt. I will attach a penal notice to that element of my Order.
28. I think in that respect I have dealt with all aspects of the Order that I consider to be appropriate. Are there any gaps that anybody feels that I may have left?
(Counsel addressed the court re costs and various ancillary matters)
29. So far as costs are concerned, what is said to me in relation to costs is that whilst the starting position is that the loser will pay the winner's costs and that Mr. Bruce has, in effect, lost here because he has both been found guilty of contempt and a sanction has now been applied to him in pretty stringent terms, nonetheless several of the allegations made by the council failed, that is that they did not convince me beyond reasonable doubt that those alleged breaches of the Order had occurred. Notwithstanding that, I do consider that there was substance to all of the allegations which were made by the council, the fact that they were not able to persuade me beyond reasonable doubt that Mr Bruce had committed all the breaches they alleged, does not mean, in my view, that it was unreasonable of them to bring forward those allegations and seek to prove them and therefore I consider it appropriate that Mr. Bruce, the Defendant, should pay the Claimant's costs and I will summarily assess them at the figure of £11,191.46 pence, which, given the number of hearings and the amount of work done in respect of this matter, I am amply satisfied are proportionate and appropriate, so I will summarily assess that figure. Payment within twenty-eight days. £11,191.46 payable by four p.m. on 18^th of January 2017.