Blog

Planning Breach Sentence Based on ‘Financial Benefit’ was Double Counting

November 26, 2015

The Court of appeal in R v. Kohali [2015] EWCA 1757, dealing with a an appeal against a sentence for an offence contrary to section 179(2) and (8) of the Town and Country Planning Act 1990, held that it would be wrong in principle to impose a fine in respect of the financial benefit from the offence under section 179(9) if it has already been the subject of a confiscation order, as this would amount to double-counting.

The court was dealing with an appeal against a sentence imposed by the Crown Court for a breach of a planning enforcement notice. In determining the amount of the fine, section 179(9) of the Town and Country Planning Act 1990 requires the court to have particular regard to any ‘financial benefit’ which has accrued or may accrue from the offence. The court held, however, that this provision does not fetter the judge’s discretion when sentencing and stated that the court’s obligation was to have regard to the financial benefit but that there was no obligation to order the full amount or even a large proportion of it. In this case the court held that the benefit gained by the appellant had been fully recognised in the confiscation order, which of course, seeks to deprive those who commit criminal offences of their ‘benefit from criminal conduct’.

It is clear that enforcement action for breaches of enforcement notices concerning planning law have become more frequent in recent years. Large breaches can often result in very significant confiscation orders. This case is important for those defendants who have been made subject to a confiscation order in respect of a planning enforcement breach but still fall to be sentenced to what might be a significant fine on top.

Testimonials

I met Stuart when I was on the opposing side in a recent licensing appeal. Since that time Woods Whur have instructed him in matters, in the most recent of which he won and had costs awarded in our client's favour. I would have no hesitation in recommending him.

Mr. P Whur, London

Mr Jessop is excellent at identifying the issue, asking relevant questions and setting out the way forward. He is friendly & approachable at all times and puts clients at ease. He elicits and analyses the evidence and advises clients clearly on the prospects of success. We recommend Mr Jessop to clients without hesitation.

Mr. G Hopkins, London

It’s not often you meet someone as tenacious as Mr Jessop. He is committed, efficient and persuasive and possess all of the qualities you could wish for from your lawyer. He is positive where others are negative, he shows dogged determination to deliver the right result for his client. I have no hesitation in recommending him - top class.

Mr. D Rogers, London

Stuart Jessop, counsel, has covered a number of difficult Licensing applications through Sanders Solicitors, including Hearings before Licensing Committees and Appeal Hearings in the Magistrates' Court. Clients have always been complementary of Mr. Jessop's advocacy and advice. He easily grasps the issues at hand and is readily forthcoming with advice on LW, Practice and Procedure.

Mr. C Turner, London

Accreditations & Professional Memberships

Get in Touch