England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20th February 2014

1. MR JUSTICE WYN WILLIAMS: On 1st February 2013, at the Inner London Crown Court, the applicant pleaded guilty to four counts of breaching enforcement notices contrary to section 179(2) of the Town and Country Planning Act 1990, henceforth in this judgment "the 1990 Act". The applicant pleaded guilty following a legal ruling by His Honour Judge Issard-Davies, to which we shall return. Five months later, on 1st July 2013, the learned judge sentenced the applicant in respect of the four counts: on count 1 he imposed a fine of £4,000; on count 2 the fine was £7,960; on count 3 he imposed a fine of £4,800; the learned judge imposed no separate penalty in respect of count 4.
2. The applicant seeks leave to appeal against his convictions in respect of counts 1 to 3. He also seeks leave in respect of the sentences imposed upon those counts. The applications have been referred to this court by the Registrar and we have decided to grant leave.
3. We begin with a brief recital of the relevant facts. The properties which are the subject of counts 1 to 3 were constructed as single dwelling houses. At some point after they had come into the ownership of the applicant, he arranged for work to be undertaken at each of the premises which had the consequence that each dwelling was converted into self-contained flats. In each dwelling, as we understand it, there were either two or three flats.
4. Planning permission was required for such development, but no application for planning permission was ever made. Accordingly, when the local planning authority, the London Borough of Newham, discovered what had happened, it resolved to issue enforcement notices. It did that with the aim of remedying the breach of planning control which had taken place.
5. On 28th October 2009 the local planning authority served upon the applicant an enforcement notice in respect of the property known as 17 Bristol Road, Forest Gate. The notice specified the steps which the applicant was required to take to remedy the breach of planning control. The steps were:

"(1 Cease the use of the property as two separate self-contained flats.

(2) Remove from the property one of the two kitchens, plus all duplicate doorbells and duplicate outside waste bins.

(3) Remove from the property all but one supply of electricity, gas and water.

(4) Remove from the site all debris arising from compliance with requirements 1, 2 and 3."

The notice specified that those steps had to be taken by 28th May 2010.

6. On 14th October 2010 the local planning authority served an enforcement notice in respect of 41 Rothsay Road, Forest Gate. The steps which the applicant was required to undertake were either identical or very similar to those which had been specified in the first notice. He was given until 14th May 2011 in order to carry out the necessary steps in relation to that property.
7. The third enforcement notice was served on 16th December 2010 in respect of 48 Shaftsbury Road, Forest Gate. Again, the steps which the applicant was required to take were very similar in terms to those which we have rehearsed in relation to the first notice. In respect of this notice, the date by which compliance had to be achieved was 27th June 2011.
8. It was common ground between the applicant and the prosecution that the applicant carried out the requirements specified in each of the notices by the date specified in those notices. Subsequently, however, the applicant again converted each of the premises into self-contained flats.
9. When the local planning authority discovered that the applicant had reverted to using the premises as flats, it issued summonses against the applicant, alleging a breach of section 181(5) of the 1990 Act. At a later date the local planning authority decided that it would not proceed upon those summonses, but rather proceed upon fresh summonses on the basis that the applicant had committed offences contrary to section 179(2) of the Act.
10. When the proceedings reached the Crown Court the applicant raised a legal point. He sought to argue that he had committed no offences against section 179(2). He acknowledged that he had committed offences pursuant to section 181(5), but, given that the offences contrary to that subsection were summary only, he contended that the time for prosecuting him had expired. In effect, at the Crown Court the applicant invited the judge to rule that he could not be guilty of the offences contrary to section 179(2) of the Act and that the time for prosecuting him for offences under section 181(5) had expired.
11. After hearing submissions from counsel acting for both the applicant and the respondent, the learned judge ruled that, assuming the facts were as asserted by the prosecution (about which there was no dispute), the applicant had committed offences contrary to section 179(2) of the Act. It was on the basis of this ruling, to repeat, that the applicant entered pleas of guilty.
12. Section 179 of the 1990 Act, so far as material, reads as follows:

"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence."

Subsection (3) provides a statutory defence to the owner, which is not relevant in this case. Subsections (4) and (5) relate to the position of a person who has control of or an interest in the land in question, and subsection (4), if infringed, becomes an offence by virtue of subsection (5).

13. At first blush, the provisions at subsection (1) and (2) of section 179 of the Act would appear to be entirely apposite in respect of what happened in this case. The period for compliance with the enforcement notice in respect of each of the properties had expired, yet the activities required by the notices to cease were being carried on and steps required by the notice to be taken had not been taken. That said, it is necessary to consider the relationship between section 179 and section 181 of the Act, and it is to section 181 that we now turn. That reads:

"(1) Compliance with an enforcement notice, whether in respect of -

(a) the completion, removal or alteration of any buildings or works;

(b) the discontinuance of any use of land; or

(c) any other requirements contained in the notice,

shall not discharge the notice.

(2) Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice.

(3) Without prejudice to subsection (1), if any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply in relation to the buildings or works as reinstated or restored as it applied in relation to the buildings or works before they were removed or altered; and, subject to subsection (4), the provisions of section 178(1) and (2) shall apply accordingly.

(4) Where, at any time after an enforcement notice takes effect -

(a) any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with the notice; and

(b) the local planning authority propose, under section 178(1), to take any steps required by the enforcement notice for the removal or alteration of the buildings or works in consequence of the reinstatement or restoration,the local planning authority shall, not less than 28 days before taking any such steps, serve on the owner and occupier of the land a notice of their intention to do so.

(5) Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice -

(a) he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

(b) no person shall be liable under section 179(2) for failure to take any steps required to be taken by an enforcement notice by way of removal or alteration of what has been so reinstated or restored."

14. We consider first the provisions at section 181(1) and (2). It seems to us that those subsections add support for the view already expressed that the applicant had contravened section 179(1) of the Act and had therefore committed an offence contrary to section 179(2). However, Mr Ahmed, who appears for the applicant as he did below, points us very firmly in the direction of section 181(5). He submits that what the applicant did after the time for expiry for compliance with the each of the notices was to carry out development at each of the premises by way of reinstating or restoring building or work which had been removed or altered in compliance with each of the enforcement notices, and accordingly he was guilty of an offence under section 181(5)(a) and equally could not be guilty of an offence under section 179(2) by virtue of section 181(5)(b).
15. In our judgment, there are a number of answers to the argument which Mr Ahmed mounts in this case. First, section 181(5) is predicated upon a conclusion that the work of reinstatement or restoration constituted, or constitutes, development. We accept the submissions which are made in detail in the skeleton argument of Mr Wills for the local planning authority that the works of reinstatement which took place at the three properties in question were not development within the Town and Country Planning Act 1990. The word "development" is defined within the Act. It is defined in section 55. The relevant parts of section 55 are these:

"(1)Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development,' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A) For the purposes of this Act 'building operations' includes -

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which -

(i) affect only the interior of the building, or

(ii)do not materially affect the external appearance of the building,and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground ..."

16. As a consequence of section 52(2), certain works are expressly excluded from the definition of development. By virtue of section 52(2)(a)(i), purely internal works are not development. Further, by reference to section 52(a)(ii) work such as the removal of a doorbell or any external utility connection which does not materially affect the external appearance of the building does not constitute development. In our judgment, works of positioning a new doorbell or positioning a utility connection on the outside of a house is very unlikely, depending upon the context, to materially affect the external appearance of the building, and in this case there is no suggestion, in our judgment, that such additions to the properties in question could have led to the conclusion that the external appearance of the buildings had been materially affected. Further, as Mr Wills points out in his skeleton, and he did so additionally orally, certain aspects of the steps which the enforcement notices required the applicant to take simply could not be categorised as development on any view. One obvious example which he gave was the removal or replacement of waste bins.
17. We are satisfied that the judge was correct to conclude that there was no development on land by way of reinstating or restoring buildings or works which had been removed or altered in compliance with an enforcement notice within that phraseology and within section 181(5) of the 1990 act. In our judgment, that finding, unimpeachable as it was, by the learned judge, provides a complete answer to the appeal in this case.
18. As it happens, there is also a second reason why the judge was correct in his ruling. Section 181(5) says nothing about the use of land or a building, yet it was an integral part of the complaint made by the local planning authority that the applicant was using the building unlawfully in that there had been an unlawful material change of use, that had ceased but had then resumed. In our judgment, on any interpretation of section 181(5) it cannot be said that it is aimed at development consisting in a material change of use. Accordingly, for those two distinct reasons we would uphold the ruling of the judge.
19. As it happens, the judge's ruling was made in the absence of authority. However, shortly before sentence was imposed in this case, Wilkie J had to determine an appeal by way of case stated in a case called Pathfield Estates Limited v London Borough of Haringey Council [2013] EWHC 2053 (Admin). We do not propose to dwell in detail upon the reasoning of Wilkie J; it suffices that we say that the approach which we have taken in this judgment is entirely consistent with the decision and reasoning of Wilkie J in that case. It suffices to make good that assertion to quote from paragraph 30 of the learned judge's judgment. That reads:

"Neither party has come up with an explanation which, in my judgment, is particularly convincing. The internal logic of section 181, however, and, in particular, the stark effect of section 181(5)(b), points irresistibly to the conclusion that section 181(5) is not an offence which can be committed by a person who has previously complied with an enforcement notice by removing works ancillary to a change of use reinstating those works, which in themselves do not amount to a development. They point to the restored change of use being a breach of planning law which is appropriately and properly charged as a section 179(2) offence, relying on the enabling provisions of section 181(1) and (2)."

20. As it seems to us, that short paragraph mirrors precisely the reasoning which has led us to conclude that the ruling of the learned judge below was correct. Accordingly, for those reasons we would dismiss the appeal against conviction.
21. We turn to the issue of sentence. Section 179(8) provides that a person convicted on indictment of an offence contrary to section 179(2) is liable to be fined. There is no limit upon the fine imposed by the statute. Section 179(9) provides:

"In determining the amount of 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."

22. Before us, Mr Ahmed takes two discrete points. The first is that he complains about the length of time which the judge attributed to the breach of each of the enforcement notices which was served.
23. We deal with that point first. Before the judge there was a debate about whether the unlawful activity had occurred over some months, which was the applicant's case, or significantly longer than a year, which was, at its highest, the case for the local authority. The learned judge heard evidence from the applicant himself, he was provided with a significant amount of documentation, some of which tended to support the applicant's case. He also heard evidence, however, from at least one official of the local authority, whose evidence was to the effect, as we have suggested, that the breach had been continuing for much longer than simply a few months. At the end of this process the judge had to reach a conclusion. He did so. He adopted, we accept, a reasonably broad brush approach. His reasoning process essentially was that although there was documentation capable of supporting the applicant's case that the period in which there had been benefit to the applicant was restricted to some months, looking at the picture overall, first, he did not believe the evidence of the applicant and, secondly, he had to factor in the eye witness account of the witness for the local authority. He then decided that a fair approach was to conclude that the period during which the applicant had gained from his unlawful activity was one year in respect of each of the three premises. Given the material available to the judge, and the fact that he had to assess two different witnesses at least saying contradictory things, we do not consider that any proper criticism can be levelled against the approach which the judge took. He set out to be fair, as he said expressly, and in our judgment he probably achieved that result in his assessment of the length of time over which the breach had continued.
24. It was the length of time over which the breach had continued, with the consequent financial gain, which was clearly the feature which figured uppermost in the judge's mind when it came to the actual sentence. Essentially, what he did was to calculate the rent levels on the three properties by reference to the period of unlawful activity, and by doing that he arrived at a figure which was in excess of £25,000. He then reduced that figure by a third to reflect the applicant's prompt guilty plea, resulting in a figure of around £16,700, and then, as we indicated at the beginning of this judgment, he apportioned that total sum appropriately between the three counts. We see nothing wrong with that process and on that ground alone we would dismiss the appeal against sentence.
25. We observe however, that the financial gain to the applicant is not to be considered the only relevant factor in determining appropriate fines in cases of this sort. It is clearly a factor that must be taken into account, the statute says so, but there are other important factors, including, for example, the nature of the breach of planning control. In this case, in our judgment, the breach was flagrant and it continued for a significant period of time. In our judgment, the overall fine imposed in this case is not manifestly excessive on any view.
26. There remains one further point in relation to the level of the fine. It was before the judge common ground that the applicant jointly owned the premises in question with his brother. Mr Ahmed submits that the judge failed to take account of the fact that the applicant's benefit from the unlawful activity was not the whole amount of rent received in respect of the premises because he shared that rent with his brother.
27. We make a number of observations about that. First, we are far from satisfied that there ever was any evidence before the judge to demonstrate that the applicant and his brother shared the benefit between them. We say that because it is accepted that the applicant was described as the landlord in the documentation which came into existence in relation to the tenant. Second, as we have sought to point out, the overall issue for us is whether the fine imposed upon the applicant was manifestly excessive, and for the reasons which we have given, and in particular the nature and the flagrancy of the breach, we have reached the clear conclusion that the fines imposed upon the applicant himself were not manifestly excessive in the circumstances of this case. Accordingly, we dismiss the appeal against sentence.