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Court of Appeal upholds level of fines imposed for listed building and planning notice breaches

The Court of Appeal has upheld the £25,000 fines imposed on a company and its director in respect of breaches of a listed building enforcement notice (LBEN) and a planning enforcement notice (PEN).

The notices were issued on 9 April 2014 by Birmingham City Council and covered a Victorian commercial building on Constitutional Hill in Birmingham. The majority of the building is Grade II listed.

The first defendant, Western Trading, was the registered freehold proprietor. Chinderpal Singh, was the sole director and a shareholder (though not the only one).

After acquiring the building the company had works undertaken to the shop fronts without planning permission or listed building consent. The timber shop fronts were removed and replaced by painted metal shop fronts.

Both the LBEN and the PEN required various steps to be taken to remediate the effect of the unauthorised works to the shop fronts. The original deadline specified was in November 2014, but the company appealed against the notices; the effect of the appeals was to extend the time for compliance until 23 October 2015. The appeals failed.

When more than three years had elapsed from the October 2015 date for compliance, and the notices had still not been complied with, the city council began a prosecution. The defendants elected trial in the Crown Court.

A four count indictment was preferred. The offending on Counts 1 to 4 reflected the failure of the appellants to comply with the requirements of either the LBEN (Counts 1 and 2) or the PEN (Counts 3 and 4), 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 on 30 August 2019. On 22 October 2019 His Honour Judge Fowler deferred sentence in order to allow the defendants to complete remedial works to the buildings in line with the LBEN and PEN.

At the sentencing hearing on 20 January 2020, the prosecution confirmed that both the LBEN and the PEN had been complied with and that the remedial works undertaken to the building were compliant with the LBEN and PEN and of a standard acceptable to the prosecution.

Judge Fowler imposed fines of £25,000 on each of the defendants. Western Trading and Mr Singh appealed.

In Western Trading Ltd & Anor v R. [2020] EWCA Crim 1234 they argued (a) that the judge's starting point of £40,000 for each defendant was too high, and (b) that the judge gave insufficient credit for both compliance with the terms on which sentence was deferred and the guilty pleas.

Lord Justice Bean, who gave the judgment of the Court of Appeal, said counsel for Birmingham had conceded that the judge did not explain how he "had in mind, prior to the deferment, a fine in the order of £40,000" for each of the two defendants.

The judge had found that the illegal alterations to the listed building might have been rectified at a cost of between £25,000 to £30,000 had the work been done promptly, but that the eventual cost was said to be in excess of £60,000.

Lord Justice Bean said it was right to say this was not a demolition case; nor a case, such as Kohali [2016] 1 Cr App Rep (S) 30 (in which a landlord had erected an unauthorised building and then received rent from it before the matter was brought to court), where the prosecution could point to a direct financial gain.

“Rather, the gravamen of the present case, as in Dagim Fish and Deli Ltd, was what Simon J in the latter case described as 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 Court of Appeal judge said, dealing first with Western Trading, its counsel had rightly accepted that the combination of the financial benefit attempted to be avoided and the degree of culpability justified a significant penalty, but submitted that any requirement of deterrence was insufficient to justify the starting point adopted by the judge.

“We disagree," Lord Justice Bean, who heard the case with Mr Justice Lavender and Mrs Justice Cockerell, said. "The combination of the attempt to avoid the cost of compliance, even if that could originally have been in the bracket £25,000 to £30,000, with obdurate disobedience to the notices for a period of over three years was ample justification for the starting point which the judge took,”

“As to the reduction to reflect the remediation work and the plea of guilty, again we do not consider that the judge was in error. The pleas of guilty were entered on arraignment of the defendants in the Crown Court, but this was 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 in our view an adequate one to reflect both the plea of guilty and the fact that the remediation works had been carried out following sentence being deferred.”

The Court of Appeal judge said that turning to Mr Singh, he 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; and although otherwise of good character he had been fined in 2018 for what the judge described as ‘a different offence from those I am dealing with here, but an offence linked to his directorship’. In those circumstances, the fine of £25,000 imposed on him cannot be regarded as excessive either.”

Both appeals against sentence were dismissed. The appellants were ordered to pay the costs of Birmingham City Council in the Court of Appeal, amounting to £3,491.00.

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