Court of Appeal Considers Appeal Against Sentence for Failure to Comply with a Planning Enforcement Notice

Constanze Bell, acting for Doncaster Metropolitan Borough Council, successfully resisted an appeal against sentence in the Court of Appeal (Regina v Roderick Bloor [2020] EWCA Crim 402, 2020 WL 01290364). Killian Garvey acted for Doncaster Metropolitan Borough Council in the Crown Court sentencing proceedings. Constanze and Killian were instructed by Neil Concannon of Doncaster Council Legal Services.

The appeal concerned the amount of a fine imposed for failing to comply with an enforcement notice to take down a building extension for which planning permission had been refused. The appellant, Roderick Bloor, contended that a fine of £15,000 that was imposed on him by HHJ Kelson QC at the Sheffield Crown Court for that offence was manifestly excessive. The Court of Appeal held that the fine was not wrong in principle or manifestly excessive and dismissed the appeal.

The development of the subject of the enforcement notice was a first-floor extension to an end-of-terrace house in a village. A planning application for the development was refused, the enforcement notice was served and an appeal against the enforcement notice was dismissed. The appellant committed an offence contrary to s.179(1) of the Town and Country Planning Act 1990 when he did not remove the extension within the period for compliance set out in the enforcement notice. He did not complete the work until some 20 months after he should have done so. He was in breach of the enforcement notice for 1 year and 8 months.

There is no statutory maximum for the fine that can be imposed for an offence contrary to s.179(1) of the Town and Country Planning Act 1990. There is no statutory minimum. There is no offence- specific guideline for this offence. A judge, as the Court of Appeal observed, is required to follow the approach required by the Sentencing Council's General Guideline on over-arching principles but within the general principles set out therein has “a broad sentencing canvass” (at [15]).

The Court of Appeal set out the process the judge had to follow under the Sentencing Council's General Guidelines:

10…That required that he first had regard to the statutory maximum and, if appropriate, minimum sentence when reaching a provisional sentence: see step 1 of that Guideline. In practise here that simply meant that the appropriate sentence would be a fine; but the breadth of statutory powers did not provide assistance in setting the level of the fine.

11. Next, the Guideline required that the judge have regard to sentencing judgments of this court. He did so and, in particular, he had regard to the judgment of R v Mohammed Kamal Ahmed [2014] EWCA Crim 1270. He also referred to "Banks on Sentence" and to a textbook on planning law. He was unable to derive great assistance from these sources as to the level of fine which should be imposed, save in so far as they illuminated general sentencing principles, and, in the case of Ahmed, applied them to this offence. It has not been suggested that the judge overlooked any relevant sentencing judgment of this court that might have been of assistance. Next, the judge was required to have regard to any definitive sentencing guidelines for analogous offences, but it is not suggested that there were guidelines for any analogous offence. So, that potential source did not provide assistance.

12. In determining the level of fine to be imposed, the judge was required by s.179(4) of the Town and Country Planning Act and also by the Sentencing Council's Guideline on over-arching principle to have regard to any financial benefit which had accrued. Where there is evidence of financial benefit then that will plainly be a material factor. In such cases, the benefit that has been achieved may provide a convenient starting point in assessing the level of fine, subject always to securing the objectives of punishment and deterrence.

Finally, the Court of Appeal observed, the judge was required by the Sentencing Guideline on over-arching principles and by s.164 of the Criminal Justice Act 2003 to take account of the financial circumstances of the appellant. A victim surcharge order was also required by statute (see s.161A of the Criminal Justice Act 2003).

The Court of Appeal’s observations regarding financial benefit will be of particular interest to practitioners:

21. The second ground of appeal concerns the fact that the offence was not motivated by financial gain. The judge did, as we have said, consider the question of financial benefit. He did not conclude that there had been any benefit or indeed any intension to secure a financial benefit. He did not do so even though the appellant would have avoided a significant financial outlay if he had succeeded in avoiding his obligation to comply with the enforcement notice. Again, the appellant was, if anything, fortunate in the approach taken by the judge. In assessing the appellant's culpability, the judge referred to the flagrancy of the breach, the period over which it was perpetrated and the appellant's cavalier approach. He did not in any way suggest that the appellant had sought to secure a financial benefit. Accordingly, we reject the complaint advance under Ground two.

Whilst there is a temptation, given the broad sentencing canvas for this offence and absence of offence specific guidance to seize on this case as a benchmark, the Court of Appeal stressed that the decision in Bloor in no way “sets a tariff for other cases” (at [19]). An offence/ sentence under s.179(1) of the Town and Country Planning Act 1990 will always be highly fact-specific.