Western Trading Ltd & Anor v R.

Fines for breach of listed-building or planning enforcement notices should reflect the offender’s culpability and the financial advantage sought by avoiding compliance. A significant fine may be justified where disobedience is deliberate and prolonged, even where the building has later been restored and no direct profit was made.

The court should not assess the level of fine by aesthetic comparison alone. Where both a small company and its controlling director are sentenced, actual financial benefit must not be removed twice. The company’s avoided benefit and the director’s personal responsibility may nevertheless be assessed separately.

The company, the freehold owner of a Grade II listed commercial building, and its sole active director pleaded guilty in the Birmingham Crown Court to failing to comply with a Listed Building Enforcement Notice and a Planning Enforcement Notice. The notices required the removal of unauthorised metal shop fronts and shutters and reinstatement of traditional timber shop fronts.

After sentence was deferred, the appellants completed compliant remedial work. The Crown Court fined each appellant £25,000. They appealed against sentence, principally contending that the starting point was excessive and that insufficient credit had been given for guilty pleas and subsequent compliance.

1. The appeals were dismissed. The starting point of £40,000, and the resulting fine of £25,000 on each appellant, were not manifestly excessive.

2. The court applied the sentencing factors identified in Duckworth [1994] Cr App R (S) 529: the degree of damage where relevant, the financial advantage sought, and culpability. The case concerned neither permanent destruction nor direct financial gain. Its gravamen was, however, prolonged and obdurate non-compliance with the notices and an attempt to avoid the cost of restoring the listed building. Those matters justified a significant penalty, consistently with R v Dagim, Fish and Deli Ltd [2014] EWCA Crim 2927.

3. The statutory requirements in section 43(6) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 179(9) of the Town and Country Planning Act 1990 concern actual financial benefit. Intended financial benefit, including an attempted saving of compliance costs, nevertheless remained relevant to sentence. The fine was not to be assessed by aesthetic considerations, although the unauthorised changes and their eventual remediation provided relevant context.

4. Where a small company and its director are both defendants, the court must avoid double punishment for an actual financial benefit. Following the principle in R v Rollco Screw and Rivet Co Ltd and others [1999] 2 Cr App Rep (S) 436, it was permissible to assess the company’s avoided benefit and then assess the director’s penalty as the controlling mind who caused the offending. Any actual benefit should be removed once only. Mr Singh’s personal fine was justified by his control of the company and his responsibility for its offences.

5. The £15,000 reduction adequately reflected the guilty pleas and completion of the remedial work after sentence had been deferred. The appellants were also ordered to pay the respondent’s appeal costs of £3,491.

• Court of Appeal (Criminal Division). The court dismissed both sentencing appeals: [2020] EWCA Crim 1234.
• Birmingham Crown Court. His Honour Judge Fowler accepted guilty pleas to failures to comply with the enforcement notices, deferred sentence to permit remediation, and fined each appellant £25,000.