Enforcement notice – Breach – Fine – Appellants appealing against fines imposed for breaches of enforcement notices in respect of listed building – Whether judge adopting high too high starting point – Whether fines adequately reflecting guilty pleas and remedial works carried out when sentence deferred – Appeals dismissed
The first appellant was the registered freehold proprietor of a Victorian Grade II listed commercial building on Constitution Hill in Birmingham. The second appellant was the sole active director of the company and a shareholder in it, though not the only one. The appellants appealed against fines imposed by a Crown Court judge in respect of breaches of a listed building enforcement notice and a planning enforcement notice issued by the local authority concerning the building issued by the local planning authority.
The appellants had removed the timber shop fronts and replaced them with painted metal shop fronts without planning permission or listed building consent. Both notices required various steps to be taken to remediate the effect of the unauthorised works to the shop fronts. The notices both required the removal of the roller shutter doors and boxes and the unauthorised shop fronts and the reinstatement of traditional timber shop fronts of the same design as the original.
Appeals against the notices failed on the basis that the overall effect of the works was to detract significantly from the architectural and historic character of the listed building.
When the notices had not been complied with after more than three years, the local authority began a prosecution and the appellants pleaded guilty to offences of failing to comply with the requirements of the notices. Sentencing was deferred to allow the appellants to complete the necessary remedial works.
The judge was minded to impose fines of £40,000 on each appellant prior to deferment. However, having regard to the fact that the appellants had taken the opportunity to resolve the problems the guilty pleas, the judge imposed a reduced fine of £25,000.
Held: The appeals were dismissed.
(1) None of the reported cases on planning offences drawn to the court’s attention involved a prosecution of both a corporate body and one of its directors. However, in offences involving a prosecution of both a small company and one of its directors, within the parameters of the relevant sentencing guidelines, three approaches might be taken to the imposition of fines: (i) form a view as to the appropriate total penalty before deciding how to apportion it between the defendants; (ii) in a case where the direct financial benefit sought to be obtained or cost sought to be avoided was that of the company, take that factor into account and then consider what penalty should be imposed on the director as having been the controlling mind of the company causing it to commit the offence and seeking thereby to achieve the financial benefit or avoid the cost for the company; or (iii) sentence each defendant separately as if he, she or it stood alone; but that would in cases of actual financial benefit infringe the principle that the court had to avoid imposing double punishment. The second approach was consistent with the sentencing guidelines as well as with the reported cases such as Duckworth [1994] Cr App R (S) 529; and that was the approach to be adopt in the present case in considering whether or not the fines of £25,000 imposed on each appellant by the judge were excessive: R v Rollco Screw and Rivet Co Ltd and others [1999] 2 Cr App Rep (S) 436 considered.
(2) There were three important factors in determining the level of penalty to be imposed. The first, which did not apply directly in a case where the alteration had been remedied, was the degree of damage that had been done to the historic structure. A second factor was the degree of financial gain that the defendant had attempted to achieve. Thirdly, and in many respects most importantly, was the degree of culpability of the defendant. In considering economic benefit the court should avoid double recovery. When sentencing organisations, the fine had to be sufficiently substantial to have a real economic impact which would bring home to both management and shareholders the need to comply with the law: Duckworth, Rance [2012] EWCA Crim 223 and R v Dagim, Fish and Deli Ltd [2014] EWCA Crim 2927 considered.
Section 43(6) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 179(9) of the Town and Country Planning Act 1990 provided that in determining the amount of any fine to be imposed on a person convicted of an offence, the court should in particular have regard to any financial benefit which had accrued or appeared likely to accrue to him in consequence of the offence. It was plainly relevant in a case such as the present to have regard to the intended financial benefit.
(3) The gravamen of the present case was the obdurate disobedience over many years of the occupier of the premises and the desire to avoid the cost of restoring the historic building. The appellants accepted that the combination of the financial benefit attempted to be avoided and the degree of culpability justified a significant penalty. The combination of the attempt to avoid the cost of compliance with obdurate disobedience to the notices for a period of over three years was ample justification for the judge’s starting point.
(4) As to the reduction to reflect the remediation work and the plea of guilty, the judge was not in error. The pleas of guilty were entered only after an application to stay the criminal proceedings as an abuse of process had been considered. The total reduction from £40,000 to £25,000 was adequate to reflect both the plea of guilty and the fact that the remediation works had been carried out following sentence being deferred. The second appellant was not the occupier of the premises and so did not directly receive a benefit, though he was a shareholder as well as an employee of the company. He was the sole active director or controlling mind of the company and caused it to commit the offences to which it had pleaded guilty. In all the circumstances, the fine of £25,000 imposed on him could not be regarded as excessive either.
Andrew Smith QC (instructed by Murria Solicitors, of Birmingham) appeared for the appellants; Joseph Millington (instructed by Birmingham City Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R v Western Trading Ltd and another
