England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 16th May 2006

1. MR JUSTICE FORBES: On 7th September 2004 in the Liverpool Crown Court, this applicant was convicted of failure to comply with an enforcement notice, contrary to section 43(2) as applied by section 74(3) of the Planning (Listed Buildings and Conservation Area) Act 1990. On 8th October 2004, he was sentenced to a fine of £2,000 with 28 days' imprisonment in default. He was also ordered to pay £3,000 towards the costs of the prosecution. The applicant now applies for an extension of time in which to renew his applications for extensions of time and leave to appeal against sentence, following refusal by the Single Judge. His application for leave to appeal against conviction was also refused and that has lapsed in the absence of renewal. The applicant submits that his applications were not lodged and renewed in time because he was suffering from depression and severe arthritic back pain during the relevant period.
2. The brief facts are these. The case concerned property at 10-14 High Street and 1a Grange Terrace, Liverpool 15. That property is in the Wavertree Village Conservation Area. The property was owned by the applicant. However, in September 1996 the building that originally existed on the site was demolished. On 20th January 1997, Liverpool City Council issued a Conservation Area Enforcement Notice under the terms of the 1990 Act. The requirements of the notice specified the rebuilding of the property in accordance with plans attached to the notice of rebuilding or accordance with any planning permissions subsequently given for the redevelopment of the site.
3. No appeal was lodged against that notice, which took effect on 24th February 1997 and required compliance by 24th August 1997. However, work on the rebuilding of the property had commenced prior to the issue of the enforcement notice and had continued after the notice came into effect. Also, planning permission has been granted to redevelop the site, although it was the planning authority's case that the earlier demolition had required the consent of the Local Planning Authority, which had neither been granted nor sought. It was also the Local Planning Authority's case that the building works currently being carried out were not in accordance with approved plans nor was the new development being constructed in the same physical form as that which had previously existed: that is to say, in accordance with the plans that had been attached to the enforcement notice itself. As a result, the applicant was prosecuted for failing to comply with the enforcement notice on 20th January 1997.
4. The applicant pleaded guilty to that charge on 8th July 1999: namely, that he had failed to comply with the notice at issue. So far as concerned the planning permissions that had been granted in respect of the site, there were two such planning permissions. The first had been granted in July 1997 and the second in November 1999. However, only the latter planning permission is relevant and was subject to conditions requiring the submission of detail relating to external materials and the window frames to the Local Planning Authority for its approval: see conditions 2 and 5 of the planning permission in question. The applicant did not appeal against the imposition of any of the conditions. A planning officer visited the site on 28th April 2000. He noticed that the works being carried out on the construction of the development, as permitted by the second planning permission, had commenced. However, the planning officer advised that there were outstanding details yet to be submitted in accordance with the conditions, including a sample of natural slate and working drawings of the timber sliding sash windows that were to be installed. As a result, a warning was issued that any works undertaken not in accordance with the approved plans would be carried out at the applicant's own risk. There was correspondence to the same effect.
5. A further visit to site was made on 4th October 2000. On that occasion, the planning officer noted that the windows that had been installed on the upper floor were of an unapproved design and constructed with an inappropriate material, namely UPVC. It was further noticed that the roof had been covered in tiles that were not approved by the Local Planning Authority. Again, correspondence to that effect was exchanged with the applicant. The letter from the Local Planning Authority issued an instruction that the windows and slates were to be removed within one month of the date of the letter: namely by 9th November 2000. However, a further visit was made on 17th November 2000 and the planning officer noticed that the unapproved windows and the tiles still remained. It was the council's view that the development had not been constructed in accordance with the relevant planning permission.
6. So it was that further proceedings were brought against the applicant for failure to comply with the original enforcement notice. He was convicted of an offence on 14th May 2001. Following that, the Council met with the applicant on November 2001 to address the non-compliant windows and tiles. It was then noticed that newly constructed balconies had been put up and that these were not in accordance with the approved plans. So it was, in April 2002, that the applicant submitted a planning application to vary conditions 2, 5 and 9 of the original planning permission in order that he might lawfully retain the UPVC windows, concrete roof tiles and balconies constructed to the rear of the property. That application was refused on 19th June 2002. The applicant appealed against that refusal on 9th July but his appeal was dismissed on 27th January 2003. The Council again advised the applicant by letter dated 5th February 2003 that he was obliged to comply with the original enforcement notice. However, the planning officer visited the site on 18th September 2003 and noted that the incorrect windows, roof tiles and balconies were still in place. He also noted that no details had been submitted for the windows or roof tiles as required by conditions 2 and 5 attached to the relevant planning permission. It was as a result of these matters that the applicant was charged with and eventually convicted of the index offence.
7. As to sentence, it is said in grounds of appeal of the applicant's own composition that the sentence passed was manifestly excessive in light of the offence, previous conviction and the applicant's means. When refusing leave to appeal, the Single Judge observed as follows:

"Given the history of this matter, as summarised in the Judge's sentencing remarks, I do not think it arguable that the level of fine or costs were excessive. The Judge went into matters very carefully."

8. So far as the question of an extension of time was concerned, the Single Judge said this:

"There has been very considerable delay in pursuing this matter, and although I take account of the fact that you have been unwell, the fact remains that your application has no merit."

9. We agree with both those sets of observations. In our judgment, given the planning history involved in this matter, the sentence passed was entirely appropriate, as was the order for costs.
10. Accordingly, for those reasons, we refuse these applications.