Enforcement notice — Breach of section 179 of the Town and Country Planning Act 1990 — Criminal Justice Act 1991 section 18(2) and (3) — Whether financial circumstances of appellant to be taken into account when considering appropriate level of fine
The appellant
was convicted for failing to comply with an enforcement notice contrary to
section 179 of the Town and Country Planning Act 1990; he was fined £25,000 and
ordered to pay £1,000 costs. The appellant appealed against his sentence.
The learned
judge had erred. He wrongly fixed the amount of the fine relying on section
179(9) of the Act without taking into account the question of ability to pay.
That subsection requires the court to have regard to any financial benefit
which has accrued or appears likely to accrue and does not lessen the
concurrent obligation of a court, when imposing a fine, to have regard not only
to the seriousness of the offence but also the financial circumstances of the
offender; this is a statutory obligation under section 18(2) and (3) of the
Criminal Justice Act 1991: see p64E. The appellant had made no significant
profit from any activity carried on by him in the unauthorised building, nor
was he likely to do so in the future: see p65A.
No cases were
referred to in the judgments
Appeal against
sentence
This was an
appeal by Derek Browning against his sentence in Taunton Crown Court on an
indictment that he had failed timeously to comply with an enforcement notice.
Mackenzie (instructed by the registrar) appeared for the appellant.
following judgments were delivered.
PILL LJ: The reasons for the court’s decision will be given by Judge David
Clarke QC.
JUDGE DAVID
CLARKE QC: On March 1 1994, in the crown court at
Taunton before Judge Cotterill, the appellant, Derek Michael Browning, pleaded
guilty to an offence contrary to section 179 of the Town and Country Planning
Act 1990, of being in breach of an enforcement notice served on him under that
Act. He was then represented by solicitors and counsel. The learned judge
deferred sentence for six months.
The appellant
appeared for sentence on August 30 1994, when he appeared in person. He said he
was unable to afford legal representation and had not applied for legal aid. He
was fined £25,000 for the offence and ordered to pay £1,000 towards the
prosecution costs. The appellant was granted 12 months to pay and a 12-month
prison sentence was imposed in default of payment.
By leave of
the single judge the appellant appealed to this court against that sentence. On
November 23 1995 we allowed the appeal, quashed the fine and the order for
costs, substituting a lower fine and costs and indicating that we would give
our reasons for that decision later.
We have given
further consideration to the proper level of fine and have decided that the
fine should be £1,000, with an order for costs of £500 in addition. We now give
our reasons.
The appellant
is the owner of Waterside Mill at Bradford-on-Tone, near Wellington, in
Somerset. This is a dwellinghouse converted from a watermill. He bought the
property in 1990. Later that year he constructed a substantial outbuilding
without planning permission. The cost to him was some £80,000, largely funded
by a bank loan. The court has been shown photographs of the building. Part of
it is two-storeyed. He says that it was built for agricultural storage purposes
and as such did not need planning permission. This was wrong in that the
building exceeded the permitted development size.
In November
1990 a planning control officer of Taunton Deane Borough Council visited the
property. The appellant said he intended to use the building for stabling his
horses, a use which would have required planning permission whatever the size
of the building. From then on the building was described in the council’s documents
as a stable block. The appellant was informed orally and in writing that
planning permission was required, but no application was made and in April 1991
the council resolved to take enforcement action.
Thereafter the
appellant applied for planning permission for the retention of the building and
formation of an outside exercise area. In November 1991 planning permission was
refused on a number of grounds, essentially environmental grounds related to
the scale and mass of the building in its rural setting close to the converted
mill house. The enforcement action for the removal of the building was
confirmed.
On April 30
1992 an enforcement notice was served on the appellant. He exercised his right
of appeal to the Secretary of State, but this appeal was dismissed on November
6 1992. Thereafter the notice took effect and he was required to remove the
building by April 24 1993. When the building remained standing after that date
he became guilty of the offence.
To complete
the history, the appellant consulted the Agricultural and Dairy Advisory
Service (‘ADAS’). Their surveyor prepared a report dated November 15 1993 which
supported the suitability of the building for agricultural storage and for a
calf-rearing enterprise. On May 20 1994, during the period of deferral of
sentence, ADAS on behalf of the appellant made a further application for
planning permission to authorise this use of the building, but the application
was refused on July 20 1994. This was the
The building
still stands. The appellant says he has acted on the advice of ADAS and still
hopes to persuade the local authority to grant planning permission for the
retention of the building in a smaller form, reducing its ground area and
removing the upper storey.
The learned
judge said in his sentencing remarks:
On the
evidence before me I am faced with a situation in which Mr Browning embarked
upon a substantial building enterprise in flagrant disregard of any liabilities
he might have towards the planning laws or with a negligent approach in so far
as he failed to make any or any sufficient enquiry as to what his obligations
might be.
Looking at
the history of the matter since, it seems to me that even when his failure was
brought forcefully to his attention as long ago as November 1990, he continued
to either put his head in the sand or to defy the planning authorities.
In the light
of that history and in the light of his apparent dilatoriness in bringing
matters or seeking to bring matters to a negotiated conclusion with the
planning authorities, it seems to me that I must consider and indeed must
impose a substantial financial penalty upon Mr Browning.
This court
fully agrees with those observations. It was not for the appellant, whether
with or without the support of his advisers, to flout the will of the planning
authority who exercise their functions and make their decisions on behalf of
the community as a whole. The fact that the building still stands 15 months
after the appellant’s sentence was imposed is a good indication of the attitude
which he has displayed throughout these events. He should not forget that this
is a continuing offence for which he can be prosecuted again by virtue of
section 179(6) of the Act. On the other hand, the local authority may prefer to
consider using other powers for securing compliance.
In the course
of his exchanges with the learned judge before sentence, the appellant briefly
explained his financial situation. He described his occupation as a farmer and
shopfitter. He had a substantial overdraft. (A report prepared for this court
by the Somerset probation service, for which we are grateful, gives more
details of the appellant’s substantial debts, including mortgage arrears and
the repayment of the original loan. He has an asset in the form of the property
itself and has or has had other saleable assets including a number of horses.
He is a married man with twin babies born in August 1995.)
The learned
judge faced the difficult task of deciding the appropriate level of fine. He
was conscious of section 179(9) of the Town and Country Planning Act which
provides:
In
determining the amount for any fine to be imposed on a person convicted of an
offence under this section, the court shall in particular have regard to any
financial benefit which has accrued or appears likely to accrue to him in
consequence of the offence.
He sought the
assistance of counsel for the Crown and the following exchange took place. The
judge said:
… a matter
upon which I need most assistance is that of sentence, because I have to take
account of the benefit accruing to the defendant from his non-compliance with
the order.
MR HODGKIN: Yes, the difficulty in a sense is that there is no suggestion that
it is for business purposes; personal use only was the way it was opened before
your honour. So that I can’t give you any figures as to …
JUDGE
COTTERILL: But does it enhance the overall value of
the property?
MR HODGKIN: Well, certainly it does, and although I could get precisely the
evidence that was given — evidence was given on behalf of the defendant last
time as to the cost of the structure and my recollection is, yes, £80,000, to
build it, so that I would put it that way, that clearly there is a substantial
enhancement to the value of the land by having a building of that size and
expense put up. I am afraid I can’t give any greater assistance than that.
In passing
sentence the learned judge said:
I am told that
his outlay on the building is in the region of £80,000. It is suggested by the
prosecution that the value of the property has been enhanced by such a figure.
It seems to me that, having regard to the outlay, all the benefit to Mr
Browning of that enhancement cannot be encompassed by that figure of £80,000,
but one of £25,000 seems more realistic.
In those
circumstances, for this offence, I impose upon him a fine of £25,000.
In the
judgment of this court the learned judge was in error in two respects. First,
it appears from his sentencing remarks that he fixed the amount of the fine
solely by reference to accrued benefit under section 179(9) of the Act and did
not take the question of ability to pay into account. That subsection requires
the court to have regard ‘in particular‘ (our emphasis) to any financial
benefit which has accrued or appears likely to accrue; it does not lessen the
concurrent obligation of a court, when imposing a fine, to have regard not only
to the seriousness of the offence but also the financial circumstances of the
offender. (This is of course a statutory obligation under section 18(2) and (3)
of the Criminal Justice Act 1991.)
Second, this
was not a case in which any substantial financial gain has been achieved or is
likely to be achieved by activities conducted in the building. Nor is any
future benefit to the appellant likely to accrue from the commission of the
offence, provided that planning control is duly enforced as we expect it will
be. On the contrary, he will suffer further loss when demolition is carried out
(whether by himself or by the council).
Subsection (9)
is a new provision in the revised section 179 of the Town and Country Planning
Act 1990, introduced by section 8 of the Planning and Conservation Act 1991 and
coming into force in January 1992. It is aimed at developers or other property
owners who erect unauthorised buildings or (more commonly) make unauthorised changes
of use of existing buildings and then derive profit from doing so in breach of
planning control. In this case the appellant has made no significant profit
from any activity carried on by him in the unauthorised building, nor is he
likely to do so in the future.
The learned
judge seems to have been led into error by counsel’s suggestion that the
unauthorised building enhanced the value of the land by the amount it had cost.
This was an erroneous approach based purely on the capital position without regard
to the expenditure involved in erecting the building.
We have
therefore had to consider the appropriate level of fine to impose on the basis
that no substantial benefit accrued or is likely to accrue to the appellant. We
have considered the undoubted seriousness of the offence and the financial
circumstances of the appellant. In our judgment, while allowing for his
financial difficulties, a substantial penalty must be imposed to mark the
serious view which we take of what the learned judge rightly described as a
flagrant breach of the law, and in all the circumstances we have decided to
impose a fine of £1,000.
The fine of
£25,000 is therefore quashed and a fine of £1,000 is substituted for it. We
give the appellant six months to pay and impose an alternative of 28 days’
imprisonment in default of payment within that time. The order for costs of
£1,000 is also quashed and an order for costs of £500 will be substituted for
it. The appeal is allowed to that extent.
Appeal
allowed.
