Test Valley Borough Council v Michael Burford & Ors [2026] EWHC 1378 (KB)
Case No QB-2021-003892[2026] EWHC 1378 (KB)
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15 April 2026
Strand
London, WC2A 2LL
Before
MR JUSTICE SWEETING
Between
TEST VALLEY BOROUGH COUNCILApplicantMICHAEL BURFORDRespondentADRIAN BURFORDRespondentLISA COOKERespondentMR S FOWLER (instructed by the Borough Legal Department) appeared for Applicant for THE FIRST RESPONDENT was not present and not represented. for THE THIRD RESPONDENT was not present and not represented. for THE FOURTH RESPONDENT was not present and not representedJUDGMENTApprovedDigital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]MR JUSTICE SWEETING: This morning I refused an adjournment for reasons set out in a short ex tempore judgment and proceeded to hear evidence on the council's application. This is, in fact, the council's second application to commit the defendants for contempt of court for breach of a court order.[2]In the case of Absolute Living Developments Ltd v DS7 Ltd [2018] EWHC 1717 (Ch), Marcus-Smith J considered what had to be established in a committal application, and I gratefully adopt his summary and, for present purposes, remind myself of the law in so doing. He held -(a) the order must bear a penal notice and (subject to dispensation) have been personally served on the respondent(b) the order must be capable of being complied with, in the sense that the time for compliance is in the future, and it must be clear and unambiguous(c) the breach of the order must have been deliberate, which includes acting in a manner calculated to frustrate the purpose of the order. It is not necessary, however, that the defendant intended to breach the order, in the sense that he or she knew the terms of the order and knew that his/her relevant conduct was in breach of the order. It is sufficient that the defendant knew of the order and that his/her conduct was intentional as opposed to inadvertent.[3]The standard of proof in relation to each allegation that an order has been breached is the criminal standard. The burden of proof is on the applicant to establish an allegation of breach to the criminal standard.[4]The present application arises out of a prolonged history of non-compliance with planning control, and with successive orders of the High Court. The proceedings concern an unauthorised residential building, constructed in the countryside at Old Stockbridge Road and Broad Road, Middle Wallop, Stockbridge, Hampshire, ("the unauthorised building")[5]Construction commenced in or around January 2015 and was carried out without planning permission. The building lies outside any defined settlement boundary and is located approximately 70 metres from a dwelling known as Oakcutts, occupied by the first defendant, who is the landowner. The unauthorised building itself has been occupied by the third and fourth defendants.[6]On 26 November 2015, the claimant local authority issued an enforcement notice, requiring removal of the unauthorised building. That notice was upheld on appeal by the decision of the Secretary of State dated 8 November 2016. A further challenge in the High Court was dismissed on 23 June 2017. The enforcement notice has remained in force throughout but has never been complied with.[7]On 5 May 2022, HHJ Walton-Smith, sitting in the High Court made an injunction, requiring the defendants to cease occupation to the extent they occupied the unauthorised building and to demolish it, with compliance initially suspended to allow the submission of a planning application seeking to retain the development. No valid planning application was submitted within the time permitted, nor was the injunction complied with thereafter.[8]As a result, the claimant commenced contempt proceedings. By order dated 10 July 2023 His Honour Judge Gargan found the third defendant to be in contempt of court. By a further order dated 25 July 2023. Deputy High Court Judge Nigel Cooper KC found the first, second and fourth defendants also to be in contempt of court for breach of the injunction of 5 May 2022. The issue of penalty was adjourned.[9]Shortly before the hearing on 24 July 2023, the claimant became aware that the third defendant had lodged a further appeal, in an attempt to secure planning permission for the unauthorised building. In circumstances where the issue of planning permission remained outstanding, Mr Cooper KC made a further order varying the injunction, to afford the defendants a final opportunity to regularise the position. Under that order, if planning permission were refused and no successful statutory challenge brought, the defendants were required to cease occupation of and demolish the unauthorised building no later than seven months after the final determination of the planning process or if sooner, their failure to comply with the injunction order, as amended.[10]The relevant planning appeal was ultimately refused by the Secretary of State on 5 January 2024, due to the third defendant's failure to provide required information. No statutory challenge was brought and the time for doing so expired on 16 February 2024. Accordingly, pursuant to the order of 24 July 2023, the defendants were to cease occupation of and to demolish the unauthorised building within seven months thereafter.[11]The defendants did not comply with those requirements, the unauthorised building remained in situ but occupied. The claimant made further attempts to engage with the defendants to facilitate compliance with the procedural requirements of the court order but received no substantive response. The Council, therefore, issued a second application for committal for contempt of court. That application concerns the period from 25 July 2023 onwards and is founded upon the defendants continuing failure to comply with the terms of Deputy High Court Judge Cooper KC's order, following the final refusal of planning permission.[12]The application is brought against the first, third and fourth defendants only. The second defendant had by that time passed away, and the claim against the fifth defendant had earlier been discontinued. I am asked to determine whether the defendants are in contempt for their breach of the order of 24 July 2023.[13]The claimant's affidavit evidence consist principally of the second and third affidavits of Andrew James, an officer of the Council and an affidavit of Mark Staincliffe. Mr James' second affidavit addresses the defendant's continued non-compliance with the order of 24 July 2023, following the final refusal of planning permission, including the fact that the unauthorised building remained in situ and occupied after the expiry of the relevant compliance date, and records the Council's attempts to engage with the defendants to secure compliance.[14]His third affidavit describes the respective roles of the defendants, including the third defendant's responsibility for the construction and continued occupation of the unauthorised building, the first defendant's position as landowner and the fourth defendant's occupation of the building. Mr Staincliffe's affidavit addresses harm, in particular, the planning harm arising from the unauthorised development in the countryside by reference to relevant development plan policies, and previous planning decisions.[15]Both witnesses were called to give evidence, Mr James indicated that he had asked for an enforcement officer, Mr Payne to visit the unauthorised building. He did so yesterday, and provided a short report by email, a copy of which was shown to me, which says that he can confirm that he completed the site visit on 14 April, the building was still in situ and still appeared to be occupied. There was a golden Labrador present, which Mr James had seen on previous occasions, there was a lawnmower parked in the garden, a car in the drive and Mr Payne could see furniture and furnishings through the window.[16]I was also shown dated photographs of the building, which is the same building which appears in the earlier evidence filed in these proceedings. The date on the photographs is again 14 April 2026. Mr James had carried out some research to establish what the extent of the financial gain by the defendants might be. Plainly, he did not profess to have any particular expertise in relation to these assessments but was able to research the question by reference to the Land Registry and the data provided by the Office for National Statistics.[17]Whilst I noted what he has said, I think the question of arriving at a proper assessment of financial gain would depend upon other factors, including the basis on which the third and fourth defendants have occupied the land belonging to the first defendant. I therefore treat the figures advanced with caution. If necessary, I will return to them in relation to matters of sentence, but I mention them for completeness in dealing with Mr James' evidence.[18]I conclude against that background that the claimant has established that the defendants are each in breach of the order made in July 2023, which was clear in its terms and should, by now, have resulted in the unauthorised building having been vacated and demolished. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk