Ahmed, R. v

An owner who resumes a use which an enforcement notice required to cease permanently may commit the offence under section 179(2) of the Town and Country Planning Act 1990, even though the owner previously complied with the notice. Section 181(5) does not displace that offence unless the alleged reinstatement or restoration is itself development. It does not apply to a resumed material change of use.

When fixing a fine for the offence, the court must give particular regard to financial benefit. Benefit is not the sole consideration. The duration and flagrancy of the planning breach may also justify the fine imposed.

The applicant had converted three houses into self-contained flats without planning permission. Enforcement notices required him to cease that use and remove features associated with the separate flats. He complied by the specified dates, but later returned the properties to use as flats.

At the Inner London Crown Court, the judge ruled that this conduct could be charged under section 179(2) of the Town and Country Planning Act 1990. The applicant then pleaded guilty to four counts and was fined on three counts. He appealed his convictions and sentences, contending that section 181(5) supplied the only available offence and that the fines were excessive.

1. The appeals against conviction and sentence were dismissed.

2. Under section 179(1), an owner is in breach after the compliance period if an activity required to cease continues or required steps remain untaken. Section 181(1) confirms that compliance does not discharge the notice. Section 181(2) further provides that a use required to cease must be discontinued permanently. The resumed use of the houses as self-contained flats therefore fell within section 179(2).

3. Section 181(5) did not assist the applicant. Its operation depended on development consisting of reinstating or restoring buildings or works removed or altered under the notice. The later works were not development: they were internal works, works which did not materially affect the buildings’ external appearance, or acts such as replacing waste bins. Independently, section 181(5) does not address a material change of use. Resuming the prohibited use was consequently chargeable under section 179(2), not confined to the summary offence in section 181(5)(a). This reasoning was consistent with Pathfield Estates Limited v London Borough of Haringey Council [2013] EWHC 2053 (Admin).

4. Section 179(9) required particular regard to the financial benefit from the offence, but did not make benefit the only sentencing factor. The judge was entitled to assess the benefit over one year, reduce the resulting figure for the guilty pleas, and take account of the flagrant and prolonged breach. The fines were not manifestly excessive. There was no satisfactory evidence that the applicant had shared the rental benefit with his co-owner.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence: [2014] EWCA Crim 1270.
• Inner London Crown Court — following a legal ruling that the conduct was chargeable under section 179(2), the applicant pleaded guilty and was fined on three counts.