In R v Western Trading Ltd and another [2020] EWCA Crim 1234; [2020] PLSCS 174 the Court of Appeal upheld a crown court judgment confirming the factors to be taken into account when determining the level of fine to impose on a party for breach of a listed building or planning enforcement notice.
The two defendants were the company and its sole active director. Western owned the freehold of a Grade II listed Victorian commercial building in Birmingham to which it carried out works to replace the original timber shop fronts with painted metal shops fronts without any planning permission or listed building consent. As a result, Birmingham City Council issued both a listed building enforcement notice and a planning enforcement notice in April 2014. Both notices required remedial works to be carried out by November 2014. Western unsuccessfully appealed against both notices effectively extending the deadline for compliance until October 2015.
When, over three years later, both notices had still not been complied with, the council prosecuted the defendants for offences contrary to section 43(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 179(2) of the Town and Country Planning Act 1990. Both defendants pleaded guilty and went on to comply with both notices – at a cost of around £60,000-70,000 – before their sentencing in January 2020.
Despite their eventual compliance, the defendants were fined £25,000 each and ordered to pay £10,700 of legal costs between them. The court confirmed the three factors set out in Duckworth [1994] Cr App R (S) 52 for determining the level of fine to be imposed. The first, being the degree of damage done to the historic structure, did not apply in this case. The second being the amount of financial gain the defendant sought to achieve by non-compliance. The third being the degree of culpability of the defendant. The court found the second factor, which is reflected in 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, of particular importance in ensuring the deterrent and punitive effect of the sentence.
In upholding the decision to impose fines upon both Western and its director, the court determined that the correct approach was to firstly take into account the financial benefit sought by the company in non-compliance in the manner set out above, and to then consider the appropriate penalty for the director as having been the controlling mind of the company.
This case acts a clear reminder that these breaches of planning law carry a very real threat of criminal prosecution and potentially large financial penalties which may only increase with the length of time a party manages to evade prosecution. It also warns that the corporate veil may not be enough to protect any individuals who are found to have a level of personal responsibility in the breach.
Erica Snellgrove is a solicitor in the planning team at Irwin Mitchell LLP
